Community Services Administration (Respondent) and American Federation of Government Employees, Local 324, AFL-CIO (Charging Party) 



[ v06 p616 ]
06:0616(109)CA
The decision of the Authority follows:


 6 FLRA No. 109
 
 COMMUNITY SERVICES ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3249
 Charging Party
 
                                            Case No. 23-CA-512
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
 AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT RESPONDENT HAD
 NOT ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1)
 AND (2) OF THE STATUTE AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED.
 NO EXCEPTIONS WERE FILED BY EITHER PARTY.
 
    PURSUANT TO SECTION 2423.19 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL 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 THE
 SUBJECT CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE
 AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND
 RECOMMENDATIONS.
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 23-CA-512 BE, AND
 IT IS HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 21, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 -------------------- ALJ DECISION FOLLOWS --------------------
 
    ALEXANDER W. PORTER, ESQUIRE
    FOR THE RESPONDENT
 
    JAMES E. PETRUCCI, ESQUIRE
    NINA L. SCHWARTZ, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    MARTIN R. COHEN, ESQUIRE
    FOR THE CHARGING PARTY
 
    BEFORE:  WILLIAM NAIMARK
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON JUNE 26, 1980
 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, NEW
 YORK REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON NOVEMBER 19,
 1980 AT NEW YORK, NEW YORK.
 
    THIS CASE ARISES UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (HEREIN CALLED THE ACT).  IT IS BASED ON A FIRST AMENDED CHARGE
 FILED ON JUNE 17, 1980 BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 LOCAL 3249, AFL-CIO (HEREIN CALLED THE UNION) AGAINST COMMUNITY SERVICES
 ADMINISTRATION (HEREIN CALLED THE RESPONDENT).
 
    THE COMPLAINT HEREIN ALLEGED THAT, ON OR ABOUT JUNE 1, 1979,
 RESPONDENT FAILED OR REFUSED TO SELECT JANICE S. FRAZIER FOR A POSITION
 AS CAP FIELD REPRESENTATIVE GS-12 BECAUSE OF HER PROTECTED UNION
 ACTIVITY UNDER THE ACT, INCLUDING THE FILING OF GRIEVANCES-- ALL IN
 VIOLATION OF SECTION 7116(A)(1) AND (2) THEREOF.
 
    RESPONDENT FILED AN ANSWER DATED JULY 15, 1980 DENYING THE COMMISSION
 OF ANY UNFAIR LABOR PRACTICES.
 
    ALL PARTIES WERE REPRESENTED AT THE HEARING.  EACH WAS AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
 CROSS-EXAMINE WITNESSES.  THEREAFTER BRIEFS /1/ WAS FILED WITH THE
 UNDERSIGNED AND HAVE BEEN DULY CONSIDERED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
 ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN A COLLECTIVE BARGAINING AGREEMENT
 EXISTED BETWEEN RESPONDENT AND THE UNION COVERING GENERAL SCHEDULE (GS)
 AND WAGE GRADE (WG) EMPLOYEES.  /2/ JANICE S. FRAZIER, WHO IS EMPLOYED
 AS A CAP FIELD REPRESENTATIVE, GS-11 BY RESPONDENT, IS A UNIT EMPLOYEE
 UNDER THE AFORESAID AGREEMENT.
 
    2.  THE SAID AGREEMENT CONTAINS VARIOUS PROVISIONS UNDER ARTICLE 12
 WHICH DEAL WITH MERIT PROMOTIONS.  UNDER DATE OF SEPTEMBER 11, 1973 THE
 AGREEMENT WAS AMENDED IN RESPECT TO VARIOUS TERMS AND CONDITIONS.
 SECTION 11 OF THE AMENDMENT, ENTITLED "FILLING VACANCIES" PROVIDES THAT
 "ALL VACANCIES IN THE COMPETITIVE SERVICE ABOVE THE ENTRY LEVEL WILL BE
 FILLED WITH IN-HOUSE CANDIDATES, WHERE POSSIBLE WITH THE EXCEPTION OF
 POLICY AND SUPERVISORY POSITIONS OR WHERE THERE IS AN EMERGENCY WHICH
 PRECLUDES USE OF THE MERIT PROMOTION SYSTEM.
 
    3.  RESPONDENT FUNDS VARIOUS GRANTEES, INCLUDING COMMUNITY ACTION
 AGENCIES, IN AN EFFORT TO ASSIST LOW-INCOME INDIVIDUALS.  MOST OF THE
 GRANTEES ARE PRIVATE NON-PROFIT AGENCIES.  THE PHILADELPHIA REGION OF
 COMMUNITY SERVICES ADMINISTRATION HAS TWO FIELD OPERATIONS:  BRANCH 1
 COVERING PENNSYLVANIA AND WEST VIRGINIA, AND BRANCH 2 COMPRISING
 DISTRICT OF COLUMBIA, DELAWARE, MARYLAND, AND VIRGINIA.
 
    4.  JANICE S. FRAZIER WAS HIRED BY RESPONDENT IN 1970 AS A SECRETARY.
  IN 1976 SHE BECAME A GS-7 FIELD REPRESENTATIVE BY VIRTUE OF A
 PROMOTION.  SHE WAS PROMOTED TO A GS-9 THE FOLLOWING YEAR.  ON DECEMBER
 28, 1976 HER SUPERVISOR GARY E. GRUNDER RATED FRAZIER AS SATISFACTORY
 FOR THE PERIOD DECEMBER 7, 1975 TO JANUARY 1, 1977.  ON JANUARY 13, 1978
 GRUNDER RATED /3/ HER AS SATISFACTORY FOR THE PERIOD FEBRUARY 13, 1977
 TO FEBRUARY 12, 1978.
 
    5.  CAREER LADDER EMPLOYEES, OF WHOM FRAZIER WAS ONE, USUALLY
 ESCULATED THEIR POSITIONS OF EMPLOYMENT TO A JOURNEYMEN'S LEVEL UPON
 RECEIVING A SATISFACTORY PERFORMANCE RATING.
 
    6.  AS A FIELD REPRESENTATIVE FRAZIER WAS REQUIRED TO PUT GRANTS
 TOGETHER, PROVIDE TECHNICAL ASSISTANCE TO AGENCIES, MONITOR THE PROGRESS
 OF THE AGENCIES, AND MEET WITH THEIR STAFFS AS WELL AS PUBLIC OFFICIALS.
  TRAVEL WAS REQUIRED SINCE MUCH OF THE WORK INVOLVED VISITING RURAL
 AREAS.
 
    7.  ON JANUARY 16, 1978 FRAZIER CONFERRED WITH SUPERVISOR GRUNDER
 REGARDING HER PERFORMANCE APPRAISAL.  AT THAT MEETING GRUNDER ADVISED
 THE EMPLOYEES SHE COULD NOT ADVANCE TO A GS-11 UNDER THE CAREER LADDER
 PROMOTION PROGRAM.  THE SUPERVISOR EXPLAINED THAT THE PROMOTION WOULD BE
 TEMPORARILY WITHHELD DUE TO AN INSUFFICIENT WORKLOAD TO SUPPORT A GS-11
 POSITION.
 
    8.  SUBSEQUENTLY, ON FEBRUARY 13, 1978, FRAZIER FILED A GRIEVANCE
 WITH RESPONDENT UNDER THE COLLECTIVE BARGAINING AGREEMENT BASED ON
 MANAGEMENT'S FAILURE TO PROMOTE HER TO THE GS-11 AS AFORESAID.  BY
 LETTER DATED FEBRUARY 27, 1978 W.A. KIRK, RESPONDENT'S REGIONAL
 DIRECTOR, INFORMED FRAZIER THAT HER GRIEVANCE WAS DENIED.  HE STATED
 THEREIN THAT THE EMPLOYER MAXIMIZED ITS COMPLEMENT OF GS-12 JOURNEYMEN
 LEVEL EMPLOYEES BY STAFFING THAT GRADE WITH EIGHT INDIVIDUALS;  THAT IT
 DID NOT APPEAR SUFFICIENT WORK WAS AVAILABLE TO SUSTAIN A GS-11 AS
 FRAZIER REQUESTED.
 
    9.  PRIOR TO THE AFORESAID GRIEVANCE BEING SUBMITTED TO ARBITRATION,
 THE NATIONAL OFFICE OF RESPONDENT REVERSED THE DECISION OF KIRK BY A
 LETTER ADDRESSED TO HIM DATED AUGUST 18, 1978.  THE REVERSAL LETTER
 STATED THAT IN 1976 TWO FIELD REPRESENTATIVE POSITIONS AT GS-11 LEVEL
 WERE POSTED;  THAT NO EVIDENCE OF A DRASTIC CHANGE WAS SHOWN TO EXPLAIN
 THE NEED FOR THESE POSITIONS IN 1977 AND THE DISAPPEARANCE OF SUCH NEED
 A YEAR LATER.
 
    10.  AS A RESULT OF THE DECISION BY THE NATIONAL OFFICE FRAZIER AND
 ROBERT CROLL, /4/ THE OTHER GS-9 FIELD REPRESENTATIVE, WERE BOTH
 PROMOTED TO GS-11 RETROACTIVE TO FEBRUARY, 1978.
 
    11.  A REORGANIZATION WAS EFFECTED BY RESPONDENT IN JULY, 1978.
 GRUNDER BECAME CHIEF OF BRANCH 1, AND WALTER S. MILLS WAS MADE CHIEF OF
 BRANCH 2.  THE LATTER ALSO BECAME SUPERVISOR OF FRAZIER AT THAT TIME.
 
    12.  WALTER S. MILLS BECAME FRAZIER'S DIRECT SUPERVISOR IN 1978.  HE
 TESTIFIED THAT IN JULY, 1978 HE ENGAGED IN SEVERAL DISCUSSIONS WITH
 FRAZIER REGARDING HER ATTITUDE AND WORK PERFORMANCE.  IN ONE INSTANCE
 THEIR DISCUSSION WAS PRECIPITATED BY FRAZIER'S BEING UNABLE-- DUE TO A
 PRIOR COMMITMENT-- TO ATTEND A TRAINING SESSION ON A PARTICULAR DAY.
 DURING THE CONVERSATION BETWEEN THEM THE EMPLOYEE MENTIONED SHE HAD
 SOME
 DIFFICULTY WITH RURAL TRAVEL AS SHE GOT LOST ON OCCASION.  AT ONE
 CONVERSATION MILLS MENTIONED THAT FRAZIER'S OFFICE BEHAVIOR CAUSED
 PROBLEMS SINCE SHE DISTURBED STAFF MEMBERS.  /5/
 
    RECORD FACTS SHOW MILLS ENCOURAGED FRAZIER TO UNDERTAKE TRAINING IN
 THE HISTORY OF STATE GOVERNMENT SINCE SHE HAD NO COURSES IN STATE AND
 LOCAL GOVERNMENT OR POLITICAL SCIENCE.  IN JULY, 1978 THE SUPERVISOR
 ALSO SPOKE WITH LOLA ROSS, PERSONNEL OFFICER, REGARDING FRAZIER'S
 ATTITUDE, HER RELUCTANCE TO TRAVEL, AND HER NEED FOR MORE ON THE JOB
 TRAINING.  ROSS SUGGESTED THAT MILLS SEND A LETTER OF CAUTION TO THE
 EMPLOYEE.  /6/
 
    13.  RECORD FACTS REFLECT THAT RESPONDENT FOLLOWED AN ESTABLISHED
 PRACTICE IN FILLING VACANCIES.  THE VACANCY ANNOUNCEMENT WAS POSTED AND
 PROCESSED INITIALLY;  A CERTIFICATE OF ELIGIBLE CANDIDATES WAS FURNISHED
 TO THE SUPERVISORS ALONG WITH FORM 171'S (APPLICATIONS) AND SUPPORTING
 DOCUMENTS;  THE SUPERVISOR INTERVIEWED THE ELIGIBLES, AND THEN ISSUED A
 RECOMMENDATION TO THE REGIONAL DIRECTOR.
 
    14.  A VACANCY FOR A GS-12 FIELD REPRESENTATIVE (R111-79-1) AROSE IN
 EARLY 1979, ALTHOUGH FRAZIER DID NOT APPLY FOR IT.  SHE DID, HOWEVER,
 FILE A GRIEVANCE IN FEBRUARY OF THAT YEAR WHEN ANOTHER INDIVIDUAL WAS
 SELECTED FOR THE POSITION.  FRAZIER'S GRIEVANCE WAS PREDICATED ON HER
 CONTENTION THAT SHE SHOULD HAVE BEEN PROMOTED NON-COMPETITIVELY TO A
 GS-12 SINCE THAT GRADE WAS THE JOURNEYMEN LEVEL WHEN SHE ENTERED THE
 CAREER LADDER.  REGIONAL DIRECTOR KIRK MET THEREAFTER WITH FRAZIER AND
 DAVIS IN REGARD THERETO.  KIRK EXPLAINED THAT MANAGEMENT WOULD NOT
 PROMOTE NON-COMPETITIVELY BEYOND THE JOURNEYMEN LEVEL, WHICH WAS A GS-11
 AT THAT TIME.  /7/
 
    15.  ANOTHER VACANCY ANNOUNCEMENT (R111-79-4) FOR A GS-12 CAP FIELD
 REPRESENTATIVE IN BRANCH 1 WAS POSTED IN 1979 WHICH ANNOUNCED THE
 OPENING DATE AS APRIL 16, 1979 AND THE CLOSING DATE AS MAY 2, 1979.
 FRAZIER APPLIED FOR THIS POSITION AND SUBMITTED A SUPERVISORY EVALUATION
 FORM TO MILLS FOR COMPLETION BY HIM.
 
    16.  THE AFORESAID EVALUATION FORM, DATED APRIL 26, 1979, WAS FILLED
 OUT BY MILLS AND RETURNED TO THE EMPLOYEE.  HE RATED HER AS AVERAGE IN
 RESPECT TO THE FOLLOWING FACTORS:
 
    - QUANTITY OF WORK.
 
    - ABILITY TO ACCEPT ORDERS, SUPERVISION AND RESPONSIBILITY.
 
    - ABILITY TO GET ALONG WITH OTHERS IN A WORK SITUATION.
 
    - ABILITY TO COMMUNICATE ORALLY.
 
    - ABILITY TO LEARN NEW WORK, ADAPT TO NEW SITUATIONS.
 
    - RELIABILITY.
 
    - INTEREST IN SELF-DEVELOPMENT, WILLINGNESS TO DO MORE THAN THE
 MINIMUM, EAGERNESS TO GET
 
    AHEAD.
 
    MILLS RATED FRAZIER AS ABOVE AVERAGE IN RESPECT TO (A) QUALITY OF
 WORK, TECHNICAL PROFICIENCY, (B) ABILITY TO COMMUNICATE IN WRITING.  HE
 ALSO COMMENTED AS FOLLOWS:
 
    "MRS. FRAZIER'S OVERALL QUALITY OF WORK IS AVERAGE.  MRS.  FRAZIER'S
 STRONG PERFORMANCE
 
    POINTS INCLUDE HER WILLINGNESS TO COMPLETE IN A TIMELY MANNER ANY
 REGULAR OR EXTRA ASSIGNMENTS
 
    GIVEN TO HER;  SHE DOES, HOWEVER, APPEAR TO HAVE RELUCTANCE TO
 TRAVEL.  IF SELECTED FOR THE
 
    GS-12 POSITION, IT IS RECOMMENDED THAT AN INTENSIVE TRAINING PROGRAM
 BE IMPLEMENTED."
 
    KIRK, WHO WAS THE REVIEWING OFFICIAL, SIGNED THE SUPERVISORY
 EVALUATION ON APRIL 26, 1979.  THEREAFTER BOTH FRAZIER AND DAVIS MET
 WITH MILLS TO DISCUSS THE LATTER'S EVALUATION.  THE EMPLOYEE PROTESTED
 THE RATINGS OF HER SUPERVISOR, BUT SINCE THEY DISAGREED AS TO THE
 CRITICISMS LEVELLED BY MILLS NOTHING WAS ACCOMPLISHED.
 
    17.  ON MAY 15, 1979 GRUNDER, WHO WAS RESPONSIBLE FOR RECOMMENDING
 THE PERSON TO BE SELECTED FOR THE GS-12 IN BRANCH 1, INTERVIEWED FRAZIER
 FOR THAT POSITION.  PRIOR THERETO THE RANKING PANEL, COMPOSED OF
 IN-HOUSE EMPLOYEES OCCUPYING THE SAME GRADE AS THE POSITION SOUGHT (IN
 THIS INSTANCE GS-12'S), RATED FRAZIER AS HIGHLY QUALIFIED.  IT ISSUED A
 MERIT-PROMOTION CERTIFICATE WHICH CONTAINED ONLY THE NAME OF JANICE
 FRAZIER THEREON.  DURING THE INTERVIEW GRUNDER DISCUSSED FRAZIER'S
 KNOWLEDGE OF THE ASSIGNMENT AND HER BACKGROUND IN PUBLIC ADMINISTRATION
 AS WELL AS THE ROLES OF THE VARIOUS GOVERNMENTS.  GRUNDER WAS INTERESTED
 IN HOW CANDIDATES RELATED TO OTHERS, PARTICULARLY ELECTED OFFICIALS.  IN
 RESPECT TO FRAZIER, THE SUPERVISOR FELT SHE WAS CONFUSED AS TO THE
 RESPONSIBILITIES OF LOCAL GOVERNMENTS IN VIRGINIA.  GRUNDER TESTIFIED
 THAT THE EMPLOYEE CONSIDERED GREEN COUNTY ECONOMIC DEVELOPMENT
 CORPORATION, A GRANTEE, A PRIVATE AGENCY WHEREAS IT IS AN AGENCY OF THE
 GREEN COUNTY GOVERNMENT.  HE CONCLUDED, DURING THE INTERVIEW, THAT
 FRAZIER WAS NOT PERFORMING AT THE JOURNEYMEN LEVEL.  SHE WAS RATED BY
 HIM AS BELOW AVERAGE.
 
    18.  GRUNDER SENT A MEMORANDUM DATED MAY 15, 1979 TO PERSONNEL
 OFFICER ROSS REGARDING HIS INTERVIEW WITH FRAZIER FOR THE POSITION OF
 GS-12 FIELD REPRESENTATIVE.  HE STATED THAT AS A RESULT OF THE INTERVIEW
 IT WAS REQUESTED THE AREA OF CONSIDERATION FOR CANDIDATED BE EXPANDED.
 THE REASONS FOR THE REQUEST WERE:
 
    A) FRAZIER EVIDENCED LITTLE UNDERSTANDING OF THE NATURE OF THE
 FEDERAL SYSTEM OF
 
    GOVERNMENT, ESPECIALLY AS IT PERTAINS TO STATE AND LOCAL
 RELATIONSHIPS.
 
    B) FRAZIER SHOWED LITTLE KNOWLEDGE OF THE SOCIO-ECONOMIC STRUCTURE OF
 VIRGINIA, ESPECIALLY
 
    AS THEY CONCERNED PROBLEMS OF POVERTY AND ECONOMICS.  FURTHER,
 GRUNDER HAD TO EXPLAIN THE
 
    GEOGRAPHY OF VIRGINIA TO THE APPLICANT.
 
    C) FRAZIER APPEARED UNFAMILIAR REGARDING THE STATUS OF GREEN COUNTY
 EDAC (LPA).
 
    D) FRAZIER'S SUPERVISOR IN HIS APPRAISAL, STATED THE EMPLOYEE WAS
 RELUCTANT TO
 
    TRAVEL.  WHILE SHE INSISTS NO PROBLEM EXISTS AS TO TRAVEL, FRAZIER
 ADMITTED TO GETTING "MIXED
 
    UP" IN RURAL AREAS.
 
    E) ALTHOUGH SHE EVINCES A GENERAL KNOWLEDGE OF THE PROCEDURES OF
 COMMUNITY ACTIONS, FRAZIER
 
    HAS DIFFICULTY CONSIDERING AND DEVELOPING CONCEPTS.
 
    F) FRAZIER'S UNDERSTANDING OF THE ROLE OF THE CAP FIELD
 REPRESENTATIVE IS LIMITED.  SHE IS
 
    ORIENTED TO PROCESS AND MECHANICS.  /8/
 
    19.  THEREAFTER A NEW PROMOTION CERTIFICATE, SIGNED BY THE COMMITTEE
 MEMBERS ON JUNE 5, 1979, WAS ISSUED FOR THE GS-12 VACANCY.  IN ADDITION
 TO FRAZIER (THE ONLY IN-HOUSE CANDIDATE), THE CERTIFICATE CONTAINED THE
 NAMES OF FOUR OTHER CANDIDATES WHO WERE RATED HIGHLY QUALIFIED:
 LAWRENCE BARNHOUSE, HOMER J. HUBERT, PAUL KOCHIS, AND STANFORD LAMB.
 /9/
 
    20.  GRUNDER INTERVIEWED ALL THE CANDIDATES ON THE NEW PROMOTION
 ADMINISTRATION, AS WELL AS HER PROBLEMS WITH TRAVELING.  GRUNDER
 ADMINISTRATION AND THE STRUCTURE OF GOVERNMENT AS WELL AS THE ABILITIES
 OF THE CANDIDATES.  THE SUPERVISOR HAD CONCLUDED FRAZIER WAS NOT THE
 PROPER PERSON FOR THE JOB BASED ON HER LACK OF KNOWLEDGE AS TO THE
 PRESENT JOB RESPONSIBILITIES AND THE TRADITIONAL KINDS OF PUBLIC
 ADMINISTRATION, AS WELL AS HER PROBLEMS WITH TRAVELLING.  GRUNDER
 TESTIFIED HE WAS SEEKING SOMEONE TO HANDLE COMPLEX PROBLEMS IN
 ADMINISTERING 35 MILLION DOLLARS IN FEDERAL FUNDS.  /10/
 
    21.  RECORD FACTS DISCLOSES THAT THE ESSENTIAL DIFFERENCES BETWEEN A
 GS-11 AND GS-12 FIELD REPRESENTATIVE REVOLVES AROUND THE COMPLEXITY OF
 THE FUNDING ITSELF.  THIS, IN TURN, DEPENDS UPON THE SIZE OF THE AGENCY
 AND THE AMOUNT OF THE GRANT.  THE PROBLEMS CONFRONTED BY THE GS-12 MAY
 BE MORE COMPLEX, AND THIS GRADE FIELD REPRESENTATIVE WOULD REQUIRE LESS
 SUPERVISION THAN THE GS-11 EMPLOYEE.  /11/
 
    22.  ON MAY 21, 1979 GRUNDER INTERVIEWED CANDIDATE PAUL KOCHIS.  THE
 LATTER WAS RATED ABOVE AVERAGE BY THE SUPERVISOR BASED ON HIS (A)
 ARTICULATENESS, (B) KNOWLEDGE REGARDING WORKING OF STATE GOVERNMENT AND
 EXPERIENCE THEREIN, (C) EXPERIENCE IN MANAGING GRANTS.
 
    23.  SUPERVISOR GRUNDER RECOMMENDED KOCHIS FOR THE GS-12 POSITION AS
 BEST QUALIFIED.  HE WAS IMPRESSED WITH THE INDIVIDUAL'S KNOWLEDGE OF,
 AND ABILITY TO DISCUSS, CONCEPTS OF LOCAL GOVERNMENT, AS WELL AS THE
 CONTACT WHICH KOCHIS HAD PREVIOUSLY WITH ELECTED LOCAL OFFICIALS.
 RECORD FACTS REFLECT, FURTHER, THAT KOCHIS SPENT EIGHT YEARS IN THE
 PUBLIC SECTOR AS A PLANNER AND GRANTS ADMINISTRATOR.  MOST OF THIS
 PERIOD WAS DEVOTED TO PROBLEM ANALYSIS, SOLUTION DEVELOPMENT, AND
 IMPLEMENTATION.  WHILE EMPLOYED WITH THE DEPARTMENT OF COMMUNITY AFFAIRS
 IN SCRANTON, PA., HE ASSISTED LOCAL GOVERNMENTS IN ANALYZING PARK AND
 RECREATIONAL RESOURCES AND NEEDS, AS WELL AS ASSISTING COMMUNITIES IN
 OBTAINING STATE AND FEDERAL FUNDS TO ACQUIRE AND DEVELOP FACILITIES.
 WITH THE HERITAGE CONSERVATION AND RECREATION SERVICE HE PARTICIPATED IN
 THE ADMINISTRATION OF THREE OF THE AGENCY'S GRANT PROGRAMS.  HE WAS ALSO
 PRINCIPAL CO-ORDINATOR FOR FEDERAL LAND ACQUISITION IN THE AFORESAID
 DEPARTMENT.  IN THE SURPLUS PROPERTY PROGRAM HE EFFECTIVELY MADE
 RECOMMENDATIONS AFTER EVALUATING LOCAL GOVERNMENT ADMINISTRATIVE AND
 DEVELOPMENTAL CAPABILITIES.
 
    24.  BY LETTER DATED JUNE 8, 1979 MANAGEMENT INFORMED FRAZIER THAT,
 THOUGH FOUND BASICALLY ELIGIBLE FOR THE GS-12 R111-79-4 POSITION, SHE
 WAS NOT SELECTED;  THAT PAUL F. KOCHIS HAD BEEN CHOSEN FOR THE POSITION.
  DIRECTOR KIRK'S TESTIMONY REVEALS THAT HE ACCEPTED THE RECOMMENDATION
 OF GRUNDER IN SELECTING KOCHIS TO FILL THE VACANCY.
 
    25.  THE RECORD REVEALS THAT FRAZIER IS CURRENTLY SERVING ON THE
 PERFORMANCE RATING AND AWARDS COMMITTEE;  THAT SHE HAS CONSULTED FREELY
 WITH UNION OFFICIALS WITHOUT INTERFERENCE FROM MANAGEMENT;  AND THAT NO
 THREATS WERE MADE BY RESPONDENT TO FRAZIER BASED ON HER HAVING FILED
 GRIEVANCES OR ENGAGED IN ANY UNION ACTIVITY.  /12/
 
    26.  IT IS FURTHER REFLECTED BY THE TESTIMONY OF UNION PRESIDENT
 DAVIS THAT SEVEN GRIEVANCES HAVE BEEN FILED BY, OR ON BEHALF OF
 EMPLOYEES, SINCE 1974;  THAT SEVERAL EMPLOYEES FILED GRIEVANCES AFTER
 JULY, 1978 WITHOUT RESULTING IN ANY RETALIATORY ACTION BEING TAKEN
 AGAINST THEM BY RESPONDENT;  AND THAT UNION MEMBERS HAVE BEEN PROMOTED
 OR HAVE RECEIVED PERFORMANCE AWARDS SINCE 1978.
 
                                CONCLUSIONS
 
    THE ISSUE PRESENTED FOR DETERMINATION IS SIMPLY STATED;  WHETHER
 RESPONDENT FAILED AND REFUSED TO PROMOTE JANICE S. FRAZIER, FIELD
 REPRESENTATIVE, TO A GS-12 IN JUNE, 1979 BECAUSE SHE FILED TWO
 GRIEVANCES AGAINST MANAGEMENT-- ALL IN VIOLATION OF SECTIONS 7116(A)(1)
 AND (2) OF THE ACT.
 
    IT IS NOT DISPUTED THAT AN EMPLOYEE WHO FILES GRIEVANCES UNDER A
 NEGOTIATED COLLECTIVE BARGAINING AGREEMENT MAY NOT, AS A RESULT THEREOF,
 BE THE VICTIM OF DISCRIMINATION.  SUCH CONDUCT BY AN EMPLOYEE IS
 PROTECTED ACTIVITY, AND AN EMPLOYER MAY NOT DISCOURAGE THE FILING OF
 GRIEVANCES OR TAKE REPRISALS FOR SUCH ACTION.  UNITED STATES DEPARTMENT
 OF TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, CHICAGO, ILLINOIS,
 3 FLRA NO. 116;  DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD,
 BREMENTON, WASHINGTON, A/SLMR NO. 582;  DEPARTMENT OF DEFENSE NATIONAL
 GUARD, A/SLMR NO. 53.
 
    IN SUPPORT OF ITS CONTENTION THAT FRAZIER WAS DISCRIMINATED AGAINST
 BY RESPONDENT THE GENERAL COUNSEL ADVERTS TO SEVERAL FACTORS:  (A) THE
 PRACTICE HAS BEEN, IN ACCORDANCE WITH SECTION 11 OF THE AMENDMENT TO THE
 AGREEMENT, TO FILL VACANCIES WITH IN-HOUSE CANDIDATES;  (B) FRAZIER WAS
 THE ONLY IN-HOUSE CANDIDATE CERTIFIED FOR THE POSITION AND SHE WAS RATED
 HIGHLY QUALIFIED;  (C) SUPERVISORS HAVE ALWAYS APPRAISED FRAZIER, IN
 RESPECT TO HER WORK PERFORMANCE, AS SATISFACTORY AND THUS CRITICISMS OF
 HER BY BOTH GRUNDER AND MILLS SHOULD BE VIEWED WITH SUSPICION;  (D) NO
 WRITTEN COMPLAINTS OR REPRIMANDS WERE EVEN ISSUED TO THIS EMPLOYEE, AND
 NO DIFFERENCE EXISTS BETWEEN THE JOB DUTIES OF A GS-11 AND GS-12 FIELD
 REPRESENTATIVE;  (E) AN INFERENCE IS WARRANTED THAT GRUNDER REFUSED TO
 RECOMMEND FRAZIER FOR THE GS-12 (R111-79-4) BASED ON HER HAVING FILED
 GRIEVANCES IN THE PAST, ESPECIALLY SINCE SHE WAS CONTINUALLY PROMOTED AS
 A CAREER LADDER EMPLOYEE.
 
    CONTRARIWISE, RESPONDENT INSISTS IT HAS NEVER EXHIBITED ANTI-UNION
 ANIMUS OR DISCRIMINATED AGAINST EMPLOYEES FOR UNION OR PROTECTED
 ACTIVITY.  THE EMPLOYER MAINTAINS THE GS-12 FIELD REPRESENTATIVE
 POSITION REQUIRES DEPTH OF KNOWLEDGE REGARDING LOCAL GOVERNMENTS AND
 LESS SUPERVISION IS NEEDED OVER SUCH INCUMBENT.  IT URGES THAT, DESPITE
 THE RATING OF 'SATISFACTORY' ACCORDED FRAZIER, MANAGEMENT HAD A FIRM
 BASIS FOR ITS CONCLUSION THAT SHE COULD NOT HANDLE THIS POSITION AS WELL
 AS OTHER APPLICANTS.  FINALLY, RESPONDENT CONTENDS THAT OTHER EMPLOYEES
 HAVE FILED GRIEVANCES WITHOUT SUFFERING ANY LOSS OF BENEFITS OR
 RETALIATIONS BY MANAGEMENT.  HENCE, IT IS MAINTAINED NO FINDING OF
 DISCRIMINATION IS WARRANTED HEREIN.
 
    UPON REVIEWING THE RECORD I AM PERSUADED THAT GENERAL COUNSEL HAS
 FAILED TO ESTABLISH THAT THE RESPONDENT'S REFUSAL TO PROMOTE FRAZIER, AS
 ALLEGED, SPRANG FROM A DISCRIMINATORY MOTIVE.  SPECIAL NOTE IS TAKEN OF
 THE FACT THAT OTHER EMPLOYEES HAVE FILED GRIEVANCES SINCE 1974;  THAT
 NONE OF THESE INDIVIDUALS WAS INTERFERED WITH, OR SUFFERED REPRISALS AS
 A RESULT THEREOF.  SIGNIFICANCE IS ATTACHED TO THE FACT THAT NO EVIDENCE
 WAS ADDUCED SHOWING UNION ANIMUS ON THE PART OF RESPONDENT.  FURTHER, I
 CANNOT DEDUCE FROM THE RECORD THAT MANAGEMENT MANIFESTED ANY HOSTILITY
 TOWARD FRAZIER BY REASON OF THE GRIEVANCES WHICH SHE FILED.  DESPITE THE
 FACT THAT SHE FILED A GRIEVANCE IN 1978, RESPONDENT PERMITTED HER TO
 APPLY FOR A GS-12 VACANCY IN JANUARY, 1979 EVEN THROUGH THE TIME TO FILE
 APPLICATIONS HAD EXPIRED.  ALTHOUGH GENERAL COUNSEL POINTS TO THE REMARK
 BY SUPERVISOR MILLS THAT FRAZIER "ALWAYS RUNS TO THE UNION," I AM UNABLE
 TO CONCLUDE THAT SUCH A COMMENT, STANDING ALONE, JUSTIFIES AN INFERENCE
 OF HOSTILITY TOWARD THE EMPLOYEE.  MILLS DID NOT REJECT FRAZIER FOR THE
 POSITION IN QUESTION, AND NONE OF HIS APPRAISALS OF THIS EMPLOYEE MADE
 ANY REFERENCE TO HER UNIONISM OR THE FILING OF GRIEVANCES.  IN TRUTH, NO
 EVIDENCE APPEARS HEREIN THAT THE EMPLOYER ATTEMPTED TO THWART FRAZIER'S
 CONDUCT IN THIS REGARD, AND I PERCEIVE NO ACTS OF INTERFERENCE,
 RESTRAINT OR COERCIVE DIRECTED TOWARD THE EMPLOYEE WHICH WOULD SUPPORT
 A
 DISCRIMINATORY MOTIVE BY MANAGEMENT IN NOT PROMOTING HER IN JUNE, 1979.
 
    THE RECORD DOES, MOREOVER, CONTAIN VARIOUS INSTANCES WHEREIN
 MANAGEMENT HAD OCCASION TO DISCUSS WITH FRAZIER CERTAIN PROBLEMS
 CONFRONTING HER IN THE PERFORMANCE OF HER JOB.  THUS, IT IS EVIDENT THAT
 THE EMPLOYEE HAD DIFFICULTY WITH RURAL TRAVEL AND ADMITTED TO BEING
 CONFUSED AT TIMES.  IN ADDITION, HER UNION REPRESENTATIVE TESTIFIED
 FRAZIER EXHIBITED CERTAIN HEADSTRONG TENDENCIES, AND THE SUPERVISOR
 NOTED BEHAVIORAL PROBLEMS INVOLVING OTHER INDIVIDUALS.  WHILE NONE OF
 THESE FACTORS WAS SUFFICIENT TO LABEL FRAZIER'S WORK PERFORMANCE AS
 OTHER THAT SATISFACTORY, IT IS CONCEIVABLE THAT BOTH MIGHT WELL DETRACT
 FROM HER STANDING IN RESPECT TO FILLING THE GS-12 POSITION.
 
    CONSIDERABLE STRESS BY THE GENERAL COUNSEL IS LAID UPON THE FAILURE
 OF MANAGEMENT TO ADHERE TO ITS GENERAL PRACTICE OF PROMOTING IN-HOUSE
 CANDIDATES AHEAD OF OTHERS.  WHILE THIS FAILURE MAY WELL PROMPT CONCERN
 AS TO THE REASONS THEREFORE, I AM SATISFIED THAT THE DISREGARD OF THIS
 POLICY DOES NOT, IPSO FACTO, REQUIRE A FINDING OR CONCLUSION THAT IT WAS
 BOTTOMED UPON A DISCRIMINATORY INTENTIONS.  IT DOES APPEAR THAT, DURING
 HIS INTERVIEW WITH FRAZIER, SUPERVISOR GRUNDER CONCLUDED THAT THE
 EMPLOYEE HAD DIFFICULTY IN RESPECT TO CERTAIN CONCEPTS OF THE VARIOUS
 GOVERNMENTAL LEVELS.  MOREOVER, SINCE SHE WAS CONFUSED AS TO THE STATUS
 OF A PARTICULAR GRANTEE, GRUNDER WAS LOATH TO RECOMMEND HER FOR THE
 VACANCY.  SUCH A CONCLUSION IS JUSTIFIED IN VIEW OF THE FACT THAT THE
 FIELD REPRESENTATIVE GS-12 JOB DOES, AS I HAVE FOUND, INVOLVE MORE
 COMPLEX SITUATIONS AND CALLS FOR AN INCUMBENT TO PERFORM WITH LESS
 DIRECT SUPERVISION.  FURTHER, I AM CONSTRAINED TO CONCLUDE THAT
 MANAGEMENT MAY WELL ENLARGE ITS SLATE OF CANDIDATES FOR A POSITION WHERE
 THE RECOMMENDING OFFICIAL IS HESITANT TO PROMOTE A PARTICULAR EMPLOYEE.
 THIS IS ESPECIALLY SO WHERE, AS IN THE CASE AT BAR, A SUPERVISOR HAS
 DETERMINED THAT FRAZIER'S WORK PERFORMANCE IS AVERAGE;  AND, FURTHER,
 WHERE THE SUPERVISOR COMMENTED IN WRITING THAT THE EMPLOYEE WOULD NEED
 INTENSIVE TRAINING IF SELECTED AS THE GS-12 FILED REPRESENTATIVE.
 
    NEITHER DO I DRAW ADVERSE INFERENCES, AS GENERAL COUNSEL REQUESTS,
 FROM THE FACT THAT GRUNDER STATED IN 1978 THAT FRAZIER'S WORK
 PERFORMANCE WAS NOT A DETERMINANT IN THE REGION'S REFUSAL TO PROMOTE HER
 TO A GS-11, AND THEN CRITICIZED THE EMPLOYEE SEVERELY IN 1979.  APART
 FROM THE FACT THAT THE GS-12 WAS A HIGHER POSITION WITH ATTENDANT
 COMPLEXITIES, THE PARTICULAR INTERVIEW IN MAY, 1979 WAS DETAILED AND
 BROUGHT TO LIGHT CERTAIN DEFICIENCIES WHICH MIGHT NOT HAVE SURFACED
 EARLIER.  I CANNOT CONCLUDE THEREFORE THAT GRUNDER'S CRITICISMS IN 1979
 WERE LEVELLED AT FRAZIER BY VIRTUE OF HER HAVING FILED A GRIEVANCE
 AGAINST MANAGEMENT.
 
    IT SHOULD ALSO BE NOTED THAT THE RECORD OF THE SELECTEE, PAUL KOCHIS,
 REVEALS THE INDIVIDUAL HAD AN EXCEPTIONAL BACKGROUND IN PUBLIC
 ADMINISTRATION;  THAT HE HAD, AS REFLECTED IN HIS APPLICATION AND
 INTERVIEW WITH GRUNDER, A FINE GRASP OF THE LEVELS OF GOVERNMENT, AND
 THAT HE HAD BEEN HIGHLY RECOMMENDED FOR HIS DEALINGS WITH GRANTEES.  IN
 SUM, GRUNDER WAS SATISFIED THAT KOCHIS UNDERSTOOD THE COMPLEXITIES OF
 GOVERNMENTAL UNITS AND THAT THE CANDIDATE WAS VERY ARTICULATE IN HIS
 DISCUSSION THEREOF.  WHILE IT IS NOT WITHIN MY PROVINCE TO DECIDE
 WHETHER THIS INDIVIDUAL WAS SUITABLE FOR THE VACANCY, I AM SATISFIED
 THAT GRUNDER UTILIZED OBJECTIVE CONSIDERATIONS IN HIS SELECTION.
 FURTHER, IT BUTTRESSES THE CONCLUSION THAT HE WAS NOT BY-PASSING THE
 GRIEVANT HEREIN BECAUSE OF HER UNION OR PROTECTED ACTIVITY.
 
    THUS I AM CONVINCED, UPON THE BASIS OF THE FOREGOING, THAT RESPONDENT
 DID NOT REFUSE OR FAIL TO PROMOTE JANICE S. FRAZIER TO A GS-12 FIELD
 REPRESENTATIVE IN MAY, 1979 BECAUSE SHE FILED GRIEVANCES OR ENGAGED IN
 ANY PROTECTED ACTIVITY UNDER THE ACT.
 
    ACCORDINGLY, IT IS CONCLUDED THAT RESPONDENT DID NOT VIOLATE SECTIONS
 7116(A)(1) AND (2) OF THE ACT.  THEREFORE, IT IS RECOMMENDED THAT THE
 AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 C.F.R. 2423.29(C)"
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 23-CA-512 BE, AND
 THE SAME IS, HEREBY DISMISSED.
 
                              WILLIAM NAIMARK
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 25, 1981
 
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SUBSEQUENT TO THE HEARING BOTH THE GENERAL COUNSEL AND THE
 RESPONDENT FILED A MOTION TO CORRECT TRANSCRIPT.  THE SAID MOTIONS,
 WHICH IN EACH INSTANCE WERE UNOPPOSED, ARE HEREBY GRANTED AS REQUESTED.
 
    /2/ THE AGREEMENT, WHICH WAS EXECUTED ON MARCH 31, 1972, WAS MADE
 BETWEEN THE OFFICE OF ECONOMIC OPPORTUNITY AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO.  OFFICE OF ECONOMIC OPPORTUNITY IS NOW
 DESIGNATED AS COMMUNITY SERVICES ADMINISTRATION.  THE AGREEMENT COVERS
 VARIOUS REGIONAL OFFICERS, INCLUDING THE ONE INVOLVED HEREIN, WHICH ARE
 REPRESENTED BY SEPARATE AFGE LOCALS.  THE CHARGING PARTY REPRESENTS THE
 UNIT EMPLOYEES AT THE REGIONAL OFFICE WHEREAT FRAZIER IS EMPLOYED.
 
    /3/ PERFORMANCE RATINGS BY SUPERVISORS ARE MADE ANNUALLY FOR THE
 FIELD REPRESENTATIVES.
 
    /4/ NO GRIEVANCE WAS FILED BY CROLL, BUT HE WAS UPGRADED ALONG WITH
 FRAZIER BY VIRTUE OF THE REVERSAL OF THE REGIONAL OFFICE'S DECISION.
 
    /5/ ROBERT L. DAVIS, PRESIDENT OF THE UNION HEREIN, TESTIFIED THAT
 MILLS DID TALK TO HIM REGARDING FRAZIER'S RELUCTANCE TO TRAVEL.  HE
 FURTHER CHARACTERIZED FRAZIER AS STRONG-WILLED, ALBEIT CONSCIENTIOUS,
 AND THAT HER BEHAVIORAL ATTITUDES RESULTED IN DISAGREEMENTS BETWEEN THE
 EMPLOYEE AND MANAGEMENT.
 
    /6/ NO WRITTEN REPRIMANDS OR CAUTIONARY LETTERS WERE EVER SENT BY
 MANAGEMENT OFFICIALS TO FRAZIER.  IN AN OFFICIAL PERFORMANCE RATING
 DATED OCTOBER 11, 1978, WHICH COVERED THE PERIOD FROM FEBRUARY 12,
 1978-- FEBRUARY 11, 1979, MILLS RATED FRAZIER AS 'SATISFACTORY.'
 
    /7/ DESPITE THE FACT THAT THE CLOSING DATE FOR APPLICATION WAS
 JANUARY 29, 1979, RESPONDENT OFFERED FRAZIER THE OPPORTUNITY TO APPLY
 FOR THE GS-12 POSITION.
 
    /8/ THE RECORD INCLUDES LETTERS FROM GRANTEES COMPLIMENTING FRAZIER
 AS WELL AS THOSE OF A COMPLAINING NATURE.  SINCE FRAZIER RECEIVED A
 SATISFACTORY RATING AND NONE OF THESE LETTERS WERE ADVERTED TO BY
 MANAGEMENT, I CONCLUDE THAT NONE OF THEM WAS RELIED UPON BY MANAGEMENT
 IN ITS REJECTION OF THIS EMPLOYEE FOR THE GS-12 POSITION.
 
    /9/ A RANKING SHEET SHOWING CANDIDATES ELIGIBLE FOR THE POSITION IS
 PREPARED BY THE PROMOTION COMMITTEE.  WHILE FRAZIER'S SCORE IS THIRD
 HIGHEST (FOLLOWING BARNHOUSE AND LAMB), RECORD FACTS REVEAL GRUNDER DID
 NOT GET THESE RANKINGS BEFORE MAKING HIS RECOMMENDATION FOR THIS