Army and Air Force Exchange Service (AAFES), Rocky Mountain Area Exchange No. 4125, Fort Carson, Colorado (Respondent) and Ann Palmer (Charging Party)

 



[ v08 p432 ]
08:0432(94)CA
The decision of the Authority follows:


 8 FLRA No. 94
 
 ARMY AND AIR FORCE EXCHANGE SERVICE
 (AAFES), ROCKY MOUNTAIN AREA
 EXCHANGE NO. 4125
 FORT CARSON, COLORADO
 Respondent
 
 and
 
 ANN PALMER
 Charging Party
 
                                            Case No. 7-CA-554
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT RESPONDENT HAD NOT ENGAGED IN
 CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1) OF THE STATUTE
 AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED.  NO EXCEPTIONS WERE
 FILED BY EITHER PARTY.
 
    PURSUANT TO SECTION 2423.29 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 DECISION 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. 7-CA-554 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., APRIL 30, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
  ARMY AND AIR FORCE EXCHANGE SERVICE
    (AAFES), ROCKY MOUNTAIN AREA
    EXCHANGE NO. 4125
    FORT CARSON, COLORADO
                                RESPONDENT
 
    AND
 
    ANN PALMER
                              CHARGING PARTY
 
 
 
    LUTHER G. JONES, III, ESQUIRE
    FOR THE RESPONDENT
 
    ANN PALMER, PRO SE
    JAMES J. GONZALES, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    BEFORE:  WILLIAM B. DEVANEY
    ADMINISTRATIVE LAW JUDGE
 
                            CASE NO.: 7-CA-554
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS PROCEEDING, UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE, 5 U.S.C. 7101, ET SEQ.  /1/, AND THE FINAL RULES AND
 REGULATIONS ISSUED THEREUNDER, FEDERAL REGISTER, VOL. 45, NO. 12,
 JANUARY 29, 1980, 5 C.F.R. 2415.1, ET SEQ., WAS INITIATED BY A CHARGE
 FILED ON MAY 2, 1980, AND AN AMENDED CHARGE FILED ON JULY 2, 1980.  THE
 COMPLAINT AND NOTICE OF HEARING ISSUED ON JULY 29, 1980, PURSUANT TO
 WHICH A HEARING WAS DULY HELD ON OCTOBER 16, 1980, IN DENVER, COLORADO,
 BEFORE THE UNDERSIGNED.
 
    ALL PARTIES WERE REPRESENTED, WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE
 BEARING ON THE ISSUES INVOLVED HEREIN, AND WERE AFFORDED FULL
 OPPORTUNITY TO PRESENT ORAL ARGUMENT AT THE CONCLUSION OF THE TESTIMONY.
  AT THE CLOSE OF THE HEARING, NOVEMBER 17, 1980, WAS FIXED AS THE DATE
 FOR MAILING POST HEARING BRIEFS WHICH WAS SUBSEQUENTLY EXTENDED,
 PURSUANT TO RESPONDENT'S TIMELY MOTION AND FOR GOOD CAUSE SHOWN, TO
 DECEMBER 8, 1980, AND RESPONDENT AND GENERAL COUNSEL HAVE TIMELY FILED
 EXCELLENT BRIEFS WHICH HAVE BEEN CAREFULLY CONSIDERED.  UPON THE BASIS
 OF THE ENTIRE RECORD /2/ INCLUDING MY OBSERVATION OF THE WITNESSES AND
 THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
 
                         FINDINGS AND CONCLUSIONS
 
    MS. ANN PALMER, WHO IS NOW EMPLOYED BY THE EXCHANGE SERVICE AT
 PETERSON AIR FORCE BASE AS SECRETARY TO THE EXCHANGE MANAGER, GRADE 6,
 AT THE TIME OF THE EVENTS WHICH GAVE RISE TO THIS DISPUTE WAS EMPLOYED
 BY THE EXCHANGE SERVICE AT FORT CARSON AS A CLERK-TYPIST, GRADE 3.  HER
 IMMEDIATE SUPERVISOR WAS MS. CATHERINE M. VADER.  ON FEBRUARY 22, 1980,
 MS. VADER COUNSELED MS. PALMER REGARDING HER JOB PERFORMANCE AND A
 "SUMMARY OF COUNSELING" WAS PREPARED.  MS. PALMER OBJECTED TO THE
 ENTRIES IN HER COUNSELING RECORD, WHICH CONCERNED MEETING OF SUSPENSE
 DATES ON TYPING AND OTHER DUTIES, AND SUBMITTED A THREE PAGE REFUTATION,
 OR EXPLANATION OF COMMENTS, ON FEBRUARY 25, 1980, AND ON FEBRUARY 26,
 1980, FILED A GRIEVANCE.  THE FIRST STEP OF THE NEGOTIATED GRIEVANCE
 PROCEDURE PROVIDES FOR A MEETING WITH THE GRIEVANT'S IMMEDIATE
 SUPERVISOR AND MS. VADER MET WITE MS. PALMER, WHO WAS ACCOMPANIED BY HER
 UNION REPRESENTATIVE, MS. MARLENE MOOSMAN, TO DISCUSS THE GRIEVANCE ON
 FEBRUARY 26, 1980.  THERE IS A SHARP CONFLICT IN TESTIMONY CONCERNING
 THE FEBRUARY 26 MEETING.  MS. PALMER TESTIFIED, IN PART, AS FOLLOWS:  ".
 .  . MRS. MOOSMAN MENTIONED TO MISS VADER THAT I WAS UNHAPPY WITH THE
 ENTRIES THAT SHE HAD MADE AND SHE--
 
   .          .          .          .
 
 
    "A.  MISS VADER.  MISS VADER SAID WELL, SHE DIDN'T SEE ANYTHING THERE
 THAT I COULD OBJECT TO AND I SAID THAT I DID NOT AGREE WITH MOST OF THAT
 AND SHE SAID, 'WHY DID YOU GO THIS ROUTE?' AND I TOLD HER, I SAID,
 'THERE WAS NO OTHER WAY I COULD GO EXCEPT THROUGH THE UNION.'
 
    "Q.  WHAT WAS THE RESPONSE TO THAT?
 
    "A.  SHE JUST SAID, 'WELL, I DON'T KNOW WHY YOU THINK I'M AGAINST
 YOU.  I'M ONLY HERE TO HELP YOU.'" (TR. 32).
 
    MS. MOOSMAN TESTIFIED, IN PART, AS FOLLOWS:
 
    "A.  THEN DURING THE CONVERSATION, SHE SAID TO ANNE, SHE SAID, 'ANNE,
 I WISH YOU HADN'T WENT THIS ROUTE.' AND I SAID, 'JUST A MINUTE, MISS
 VADER,' I SAID, 'MRS. PALMER HAS THE RIGHT TO GO WHICH EVER WAY SHE
 WANTS TO GO.' SHE SAYS, 'WELL, ANNE, I WISH YOU HADN'T DONE THIS.  MY
 DOOR IS OPEN.  YOU CAN COME TALK TO ME.'" (TR. 85).
 
    MS. VADER DENIED HAVING MADE ANY STATEMENT TO THE EFFECT OF "WHY DID
 YOU GO THIS ROUTE" AND/OR "I'M ONLY HERE TO HELP YOU." (TR. 107).  I
 FOUND MS. VADER A VERY CREDITABLE WITNESS AND SHE PREPARED A MEMORANDUM
 OF THE MEETING (RES. EXH. 3);  BUT WITHOUT RESOLVING THE CONFLICT IN
 TESTIMONY, WHETHER, AS MS. VADER TESTIFIED, SHE STATED:  "I ASKED HER
 WHY, WHAT LED UP TO THIS" (TR. 105) OR WHETHER, AS MS. PALMER TESTIFIED,
 MS. VADER HAD SAID "WHY DID YOU GO THIS ROUTE?", I FIND NOTHING IN
 EITHER STATEMENT, IN THE COURSE OF A GRIEVANCE MEETING, WHICH IN ANY
 MANNER INTERFERED WITH MS. PALMER'S EXERCISE OF ANY PROTECTED RIGHT,
 INCLUDING THE RIGHT TO FILE AND PROCESS GRIEVANCES, IN VIOLATION OF SEC.
 16(A)(1) OF THE STATUTE.  A GRIEVANCE MEETING IS NOT SO STERILE THAT TO
 ASK, IN EFFECT, WHAT ARE YOU GRIEVING ABOUT, WHETHER PHRASED AS "WHAT
 LED UP TO THIS" OR "WHY DID YOU GO THIS ROUTE" BECOMES AN UNFAIR LABOR
 PRACTICE. CF., NATIONAL LABOR RELATIONS BOARD, REGION 1, BOSTON,
 MASSACHUSETTS, 5 FLRA NO. 87 (1981).  INDEED, ANY IMPLICATION OF
 INTERFERENCE WAS SPECIFICALLY DISCLAIMED BY MS. PALMER WHO ADMITTED, ON
 CROSS-EXAMINATION, THAT WHEN SHE MENTIONED THE GRIEVANCE, MS. VADER HAD
 SAID, "THAT'S YOUR RIGHT" (TR. 71), AND FURTHER, ON CROSS-EXAMINATION,
 STATED THAT THERE WAS NO THREATENED PUNISHMENT FOR FILING THE GRIEVANCE
 (TR. 67).  NOR, OF COURSE, IS THERE ANY EVIDENCE WHATEVER OF ANY
 INTERFERENCE WITH MS. PALMER'S RIGHTS UNDER THE STATUTE.  TO THE
 CONTRARY, MS. PALMER SUBSEQUENTLY MOVED TO ANOTHER JOB WITH THE EXCHANGE
 SERVICE AT A HIGHER GRADE.
 
    NOR DO I FIND ANY BASIS FOR A VIOLATION OF THE STATUTE IN MS.
 PALMER'S TESTIMONY THAT MS. VADER ON FEBRUARY 26 ALSO SAID, "WELL, I
 DON'T KNOW WHY YOU THINK I'M AGAINST YOU.  I'M ONLY HERE TO HELP YOU."
 /3/ ASSUMING, BUT WITHOUT RESOLVING THE CONFLICT OF TESTIMONY AS BETWEEN
 MS. PALMER AND MS. VADER, THAT MS. VADER MADE THE STATEMENT ON FEBRUARY
 26, 1980, ATTRIBUTED TO HER BY MS. PALMER, NOTHING CONTAINED IN THE
 STATEMENT CONSTITUTED INTERFERENCE, RESTRAINT, OR COERCION OF MS. PALMER
 IN THE EXERCISE OF ANY RIGHT ASSURED UNDER THE STATUTE, AND,
 SPECIFICALLY, HER RIGHT TO FILE AND TO PROCESS GRIEVANCES UNDER THE
 NEGOTIATED AGREEMENT.  FROM MS. PALMER'S RESPONSE TO THE COUNSELING
 ENTRIES AND FROM HER TESTIMONY, IT IS OBVIOUS THAT, IN SUBSTANTIAL PART,
 HER POSITION WAS THAT, ALTHOUGH SHE CONCEDED VARIOUS FAILURES TO
 COMPLETE ASSIGNED TASKS, SHE ASSERTED SHE WAS PREVENTED FROM DOING SO BY
 OTHER PRIORITIES.  CONSEQUENTLY, IF SUCH STATEMENT WERE MADE, IN THE
 CONTEXT OF THE DISCUSSION OF THE GRIEVANCE, IT MOST PROBABLY WAS MADE IN
 RESPONSE TO MS. PALMER'S CONTENTION THAT SHE HAD OTHER PRIORITIES OR AS
 MS. VADER'S MEMORANDUM STATED," . . . I TOLD HER THAT SHE HAD NOT
 INFORMED ME.  . . . " AND "IF WAS ABSOLUTELY NECESSARY TO KEEP ME
 INFORMED OF ANY UNFORSEEN REQUESTS OR PROBLEMS SHE MIGHT ENCOUNTER . . .
 ." (RES. EXH. 3).  BUT THE STATEMENT ATTRIBUTED TO MS. VADER, EVEN
 WHOLLY REMOVED FROM CONTEXT, SIMPLY DID NOT CONSTITUTE EVIDENCE OF A
 VIOLATION OF SEC. 16(A)(1) OF THE STATUTE.  INDEED, EVEN MS. MOOSMAN'S
 VERSION, WHICH I HAVE NOT CREDITED, WOULD NOT HAVE CONSTITUTED A
 VIOLATION OF SEC. 16(A)(1).  STANDING ALONE, A STATEMENT, EVEN IF MADE,
 THAT "I WISH YOU HADN'T WENT THIS ROUTE," OR EVEN "I WISH YOU HADN'T
 FILED A GRIEVANCE" DOES NOT INTERFERE WITH, RESTRAIN, OR COERCE ANY
 EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT ASSURED BY THE
 STATUTE FOR THE REASON THAT SUCH STATEMENT CONTAINS NO THREAT AND DOES
 NOTHING TO DISCOURAGE THE FILING OF GRIEVANCES.  COMPARE, FOR EXAMPLE,
 DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD, BREMERTON,
 WASHINGTON, A/SLMR NO. 582, 5 A/SLMR 700 (1975);  NATIONAL LABOR
 RELATIONS BOARD, REGION 17, AND NATIONAL LABOR RELATIONS BOARD, A/SLMR
 NO. 671, 6 A/SLMR 333, 6 A/SLMR SUPP. 102 (1976).  NOT ONLY IS THE
 RECORD DEVOID OF ANY EVIDENCE OF ANY THREAT OR COERCION OF MS.  PALMER,
 BUT, AS NOTED ABOVE, MS. PALMER STATED THAT THERE WAS NO THREATEN
 PUNISHMENT FOR FILING THE GRIEVANCE.
 
    ON MARCH 19, 1980, MS. VADER HAD A FURTHER COUNSELLING MEETING WITH
 MS. PALMER IN WHICH SHE COMPLEMENTED MS. PALMER FOR HER JOB ON THE 1980
 HANDICAPPED PLANS OF ACTION (TR. 36, 38;  RES. EXH. 2). MS. PALMER
 FURTHER TESTIFIED THAT MS. VADER BROUGHT UP THE SUBJECT OF FILING WHICH
 MS. PALMER HAD NOT ACCOMPLISHED AND WHEN MS. PALMER PROMISED SHE WOULD
 CATCH UP WITH THE FILING, MS. VADER SAID SHE WOULD TAKE HER AT HER WORD
 AND WOULD NOT WRITE HER UP.  (TR. 36-38).  IN VIEW OF MS. PALMER'S
 POSITIVE STATEMENTS THAT:  A) THERE WAS NOT FURTHER DISCUSSION (TR. 39);
  AND B) THERE WAS NO DISCUSSION ABOUT HER GRIEVANCE (TR. 39), TOGETHER
 WITH MS.  VADER'S WHOLLY CREDIBLE TESTIMONY AND THE WRITTEN SUMMARY OF
 COUNSELING, SIGNED BY MS. PALMER (RES. EXH.  2), I DO NOT CREDIT MS.
 PALMER'S PROMPTED STATEMENT WHICH MS. VADER SPECIFICALLY DENIED, THAT
 MS. VADER ON MARCH 19, 1980, SAID "WHY DO YOU THINK I'M ALWAYS AGAINST
 YOU?  WHY DID YOU GO THAT ROUTE?"
 
    ON MAY 1, 1980 (RES. EXH. 4), MS. PALMER TESTIFIED THAT MS. VADER
 TOLD HER" . . . WHEN MR. SCHUNK RETURNS FROM DALLAS, I WILL BE MOVING
 YOUR DESK" (TR. 51) TO WHICH SHE MADE NO REPLY (TR. 51).  MS. PALMER
 STATED THAT MS. VADER SAID THAT MOVING HER DESK WOULD PERMIT "A BETTER
 WORKING RELATIONSHIP" (TR. 52).  THE MOVE CONSISTED OF MOVING MS.
 PALMER'S DESK SIX OR SEVEN FEET (TR 132-133), IN ESSENCE TO PLACE HER
 DESK ON THE OTHER SIDE OF A PARTITION (TR. 87) IN MS. VADER'S WORK AREA.
  ON MAY 9, 1980, MS. MOOSMAN REQUESTED A MEETING ON THE PROPOSED
 MOVEMENT OF THE DESK AND A MEETING WAS HELD AT ABOUT 3:00 P.M. ON MAY 9,
 1980.  PRESENT WERE MS.  VADER, MS. PALMER AND MS. MOOSMAN.  MS. PALMER
 TESTIFIED THAT MS. MOOSMAN OPENED THE MEETING BY STATING, "I HAVE COME
 HERE TO DISCUSS THE IMPACT OF THE MOVE OF THE DESK." (TR. 54).  I DID
 NOT FIND THE TESTIMONY OF EITHER MS. PALMER OR MS. MOOSMAN CONVINCING.
 ON THE OTHER HAND, I FOUND MS.  VADER'S TESTIMONY ENTIRELY CREDIBLE.
 FOLLOWING THE MEETING, MS. VADER PREPARED A MEMORANDUM OF THE MEETING
 (RES. EXH. 4) WHICH FULLY SUPPORTS HER TESTIMONY.  ACCORDINGLY, I FIND,
 AS MS. VADER TESTIFIED, SHE SAID, IN EFFECT, "I HAVE YOU HERE TO TELL
 YOU THAT I AM, IN THE PRESENCE OF YOUR UNION REPRESENTATIVE, I AM TRYING
 TO GIVE YOU A DATE THAT I AM GOING TO MOVE YOUR DESK AROUND INTO MY WORK
 AREA" (TR. 116).  MS. MOOSMAN GAVE SEVERAL VERSIONS OF WHAT SHE ASSERTED
 MS. VADER SAID, IN PART, AS FOLLOWS:
 
    "A.  SHE SAID THAT SHE WAS GOING TO MOVE ANNE'S DESK 'IN FRONT OF
 YOUR UNION REPRESENTATIVE, EVEN WITH YOUR UNION REPRESENTATIVE HERE.'"
 (TR. 97).
 
    MS. LAMER ALSO GAVE SEVERAL VERSIONS, IN PART, AS FOLLOWS:
 
    " . . . MS. VADER SAID AGAIN THAT, 'I'M GOING TO MOVE YOU WHETHER YOU
 LIKE IT OR NOT.'" (TR. 54).
 
    " . . . 'IN SPITE OF YOUR UNION REPRESENTATIVE BEING HERE.'" (TR.
 55)
 
    GENERAL COUNSEL STATES IN HIS BRIEF, IN PART, AS FOLLOWS:
 
    "RESPONDENT'S RIGHT TO RELOCATE AN EMPLOYEE IS NOT IN CONTROVERSY."
 (G.C. BRIEF, P. 5).
 
    AS THE RIGHT OF MANAGEMENT TO MOVE MS. PALMER'S DESK WAS A MANAGEMENT
 RIGHT UNDER SEC. 6(A) OF THE STATUTE, THE CHANGE IN CONDITION OF
 EMPLOYMENT, I.E., THE DECISION TO MOVE THE DESK INTO MS. VADER'S WORK
 AREA, WAS NOT NEGOTIABLE, AND PURSUANT TO SEC.  6(B)(2) AND (3) OF THE
 STATUTE, RESPONDENT WAS OBLIGATED TO BARGAIN ONLY AS TO "(2) PROCEDURES
 WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE IN EXERCISING ANY
 AUTHORITY UNDER THIS SECTION;  OR (3) APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES ADVERSELY AFFECTED BY THE EXERCISE OF ANY AUTHORITY UNDER THIS
 SECTION . . . ." ALTHOUGH I DO NOT CREDIT EITHER MS. PALMER'S OR MS.
 MOOSMAN'S STATEMENTS, EVEN IF MS. VADER HAD TOLD MS. PALMER, AS MS.
 PALMER ASSERTED, THAT "I'M GOING TO MOVE YOU WHETHER YOU LIKE IT OR NOT"
 OR I'M GOING TO MOVE YOU "IN SPITE OF YOUR UNION REPRESENTATIVE BEING
 HERE" OR HAD STATED, AS MS. MOOSMAN ASSERTED," . . . SHE WAS GOING TO
 MOVE ANNE'S DESK 'IN FRONT OF YOUR UNION REPRESENTATIVE, EVEN WITH YOUR
 UNION REPRESENTATIVE HERE,'" NEITHER STATEMENT, EVEN IF MADE, WOULD HAVE
 CONSTITUTED A VIOLATION OF SEC. 16 (A)(1) OF THE STATUTE.  THE DECISION
 TO MOVE MS. PALMER'S DESK, AS A RESERVED RIGHT OF MANAGEMENT, WAS A FAIT
 ACCOMPLI, SUBJECT ONLY TO NEGOTIATIONS ON IMPACT AND IMPLEMENTATION.
 DELAWARE ARMY AND AIR NATIONAL GUARD, CASE NO.  23-CA-104 (ALJ, APRIL
 10, 1981).  THERE IS NO QUESTION THAT MS. PALMER WAS UNHAPPY ABOUT THE
 DECISION;  BUT RESPONDENT'S STATEMENT OF ITS DECISION TO EXERCISE A
 MANAGEMENT RIGHT, WHETHER MS.  PALMER LIKED IT OR NOT, OR IN SPITE OF
 HER UNION REPRESENTATIVE BEING PRESENT, DID NOTHING TO SUGGEST
 "INEFFICACY OF SUCH REPRESENTATION," AS GENERAL COUNSEL ASSERTS, SINCE
 THE DECISION WAS A CONCEDED RIGHT OF MANAGEMENT.  AS TO NEGOTIATIONS
 PURSUANT SEC. 6(B)(2) AND (3), THEY WERE NOT REACHED ON MAY 9, INDEED,
 NOT EVEN THE DATE FOR THE MOVE WAS GIVEN OR DISCUSSED BECAUSE MS. PALMER
 WAS UPSET AND MS. VADER AND MS. MOOSMAN AGREED TO GET TOGETHER ANOTHER
 TIME (TR. 98, 116).
 
    HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SEC. 16(A)(1) OF THE
 STATUTE AS ALLEGED, I RECOMMEND THAT THE AUTHORITY ADOPT THE FOLLOWING:
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-554 BE, AND
 THE SAME IS HEREBY, DISMISSED.
 
                            WILLIAM B. DEVANEY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JUNE 3, 1981
 
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE STATUTE ARE, ALSO,
 REFERRED TO HEREINAFTER WITHOUT INCLUSION OF THE INITIAL "71" OF THE
 STATUTE REFERENCE, E.G.  SECTION 7116(A)(1) WILL BE REFERRED TO SIMPLY
 AS "16(A)(1)."
 
    /2/ AS PART OF ITS BRIEF, RESPONDENT HAS NOTED "ERRATUM IN
 TRANSCRIPT" (RES. BRIEF, P. 29) WHICH I SHALL TREAT AS A MOTION CORRECT
 TRANSCRIPT WHICH IS GRANTED AND THE TRANSCRIPT IS HEREBY CORRECTED AS
 FOLLOWS:
 
    (1) PAGE 29, 1. 17, THE WORD "NOT" IS INSERTED BETWEEN "I'M AND
 "GOING," TO READ, "I'M NOT GOING TO DECIDE THE GRIEVANCE."
 
    (2) PAGE 29, 1. 24 (NOT LINE 22) THE FIRST WORD "BUYING" IS DELETED
 AND THE WORD "BARRING" IS INSERTED THEREFOR.
 
    (3) PAGE 89, L. 24, THE FIRST WORD "MINE" IS DELETED AND THE WORD
 "MIND" IS INSERTED THEREFOR.
 
    /3/ I DID NOT FIND MS. MOOSMAN'S TESTIMONY CONVINCING IN MANY
 RESPECTS.  FOR EXAMPLE, SHE STATED, "WELL, MAYBE I DIDN'T QUITE SAY IT
 THE WAY I WAS SUPPOSED TO .  . ." (TR. 93).  MS. PALMER'S TESTIMONY AS
 TO HER VERSION OF MS. VADER'S FEBRUARY 26, 1980, STATEMENT IS
 ESSENTIALLY CONSISTENT WITH HER AMENDED