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



[ v08 p440 ]
08:0440(95)CA
The decision of the Authority follows:


 8 FLRA No. 95
 
 INTERNAL REVENUE SERVICE
 WASHINGTON, D.C.
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION
 Charging Party
 
                                            Case No. 5-CA-495
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE ENTITLED PROCEEDING, FINDING THAT RESPONDENT HAD NOT ENGAGED IN
 THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
 THAT THE COMPLAINT BE DISMISSED.  NO EXCEPTIONS WERE FILED BY ANY PARTY.
 
    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 DECISION AND THE ENTIRE RECORD, AND NOTING PARTICULARLY THE
 ABSENCE OF EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS,
 CONCLUSIONS, AND RECOMMENDATIONS.  IN THIS REGARD, THE AUTHORITY FINDS
 THAT, BASED ON THE RECORD AND THE JUDGE'S CREDIBILITY FINDINGS, IT
 CANNOT BE CONCLUDED THAT THE PERFORMANCE EVALUATION GIVEN EMPLOYEE
 CAROL
 LAFOLLETTE CONSTITUTED DISCRIMINATION AGAINST HER BECAUSE OF HER ROLE IN
 THE PROCESSING OF A PREVIOUS UNFAIR LABOR PRACTICE COMPLAINT.  /1/
 
    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. 5-CA-495 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 --------------------
 
    INTERNAL REVENUE SERVICE
    WASHINGTON, D.C.
                                RESPONDENT
 
    AND
 
    NATIONAL TREASURY EMPLOYEES UNION
                              CHARGING PARTY
 
 
 
    JOHN A. FREEMAN, ESQ.
    GEORGE T. BELL, ESQ.
    FOR THE RESPONDENT
 
    SHIELA REILLY, ESQ.
    FOR THE GENERAL COUNSEL
 
    JOSEPH V. KAPLAN
    FOR THE CHARGING PARTY
 
    BEFORE:  FRANCIS E. DOWD
    ADMINISTRATIVE LAW JUDGE
 
                            CASE NO.: 5-CA-495
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ.
 IT WAS INSTITUTED BY THE ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING
 ON JUNE 25, 1980 BASED UPON A CHARGE FILED ON APRIL 17, 1980.
 
    THE COMPLAINT CONTAINS THE FOLLOWING ALLEGATIONS AGAINST THE INTERNAL
 REVENUE SERVICE, THE RESPONDENT HEREIN:
 
    SINCE ON OR ABOUT FEBRUARY 11, 1980 AND CONTINUING TO DATE, THE
 RESPONDENT HAS IN VIOLATION
 
    OF 5 USC 7116(A)(1) AND (4) DISCRIMINATED AGAINST CAROL LAFOLLETTE, A
 BARGAINING UNIT
 
    EMPLOYEE, BECAUSE SHE FILED A COMPLAINT AND AFFIDAVIT AND GAVE
 INFORMATION AND TESTIMONY UNDER
 
    CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE BY THE FOLLOWING ACTS
 AND CONDUCT:
 
    ON OR ABOUT FEBRUARY 11, 1980, THE RESPONDENT BY ITS SUPERVISOR AND
 AGENT ELLEN M. LEVERENZ
 
    RE-EVALUATED THE PERFORMANCE OF CAROL LAFOLLETTE AND ISSUED TO HER AN
 EVALUATION LOWER THAN
 
    THAT CURRENTLY IN EFFECT.  THIS ACTION WAS TAKEN BECAUSE MS.
 LAFOLLETTE HAD INITIATED AN
 
    UNFAIR LABOR PRACTICE CHARGE AGAINST THE RESPONDENT AND HAD GIVEN
 STATEMENTS, INFORMATION AND
 
    TESTIMONY INCIDENT THERETO, THE HEARING HAVING BEEN HELD ON JANUARY
 16, 1980.
 
    THUS, THE GRAVAMEN OF THE COMPLAINT CONCERNS THE FEBRUARY 11, 1980
 APPRAISAL OF LAFOLLETTE BY HER SUPERVISOR, LEVERENZ.  RESPONDENT DENIES
 ANY VIOLATION OF THE ACT, ASSERTS THAT THE PERFORMANCE APPRAISAL WAS
 BASED SOLELY ON LEGITIMATE PERFORMANCE RELATED CONSIDERATIONS, AND
 CONTENDS THAT THE GENERAL COUNSEL HAS FAILED TO ESTABLISH A PRIMA FACIE
 CASE.
 
    AT THE HEARING IN INDIANAPOLIS, INDIANA ALL PARTIES WERE AFFORDED
 FULL OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
 WITNESSES, AND ARGUE ORALLY.  THEREAFTER, ALL PARTIES FILED BRIEFS WHICH
 HAVE BEEN DULY CONSIDERED.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
 TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING
 FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDED ORDER.
 
                             FINDINGS OF FACT
 
    1.  MS. CAROL LAFOLLETTE IS A GROUP CLERK IN THE REVENUE
 REPRESENTATIVE SECTION OF OFFICE BRANCH, INDIANAPOLIS DISTRICT, INTERNAL
 REVENUE SERVICE.  HER DUTIES CONSIST PRIMARILY OF PROVIDING CLERICAL
 SUPPORT TO THE SECTION CHIEF.
 
    2.  ON SEPTEMBER 21, 1979, LAFOLLETTE FILED AN UNFAIR LABOR PRACTICE
 CHARGE IN CASE NO. 5-CA-230 (NOT THE PRESENT CASE) ALLEGING THAT
 RESPONDENT VIOLATED SECTION 7116(A)(1) AND (2) BY ITS FAILURE TO SELECT
 HER FOR PROMOTIONS TO SEVERAL POSITIONS FOR WHICH SHE HAD APPLIED.
 
    3.  ON OR ABOUT OCTOBER 6, 1979 MS. ELLEN LEVERENZ WAS ASSIGNED AS
 SECTION CHIEF OF THE SECTION IN WHICH LAFOLLETTE WORKED.  /1/ THERE IS
 NO DIRECT EVIDENCE THAT LEVERENZ KNEW ABOUT THE PENDING UNFAIR LABOR
 PRACTICE CHARGE.
 
    4.  ON OCTOBER 16, 1979, LAFOLLETTE MET WITH AN ATTORNEY OF THE
 AUTHORITY INVESTIGATING THE CHARGE.  SINCE LAFOLLETTE USED OFFICIAL
 TIME, FOR THIS PURPOSE, IT MAY BE INFERRED THAT SOME MANAGEMENT OFFICIAL
 KNEW ABOUT IT.  HOWEVER, THE RECORD DOES NOT ESTABLISH THAT LEVERENZ HAD
 SUCH KNOWLEDGE OR, INDEED, WHETHER SHE WAS WORKING HER REGULAR JOB THAT
 DAY, WORKING ELSEWHERE IN THE ORGANIZATION, OR ON LEAVE.
 
    5.  ON NOVEMBER 8, 1979, LAFOLLETTE FILED AN AMENDED CHARGE IN THE
 CASE THEN UNDER INVESTIGATION.
 
    6.  ON NOVEMBER 13, 1 COMPLAINT AND NOTICE OF HEARING WAS ISSUED IN
 CASE NO. 5-CA-230 ALLEGING A VIOLATION OF SECTION 7116(A)(1) AND (2)
 BASED UPON THE NON-SELECTION OF LAFOLLETTE FOR PROMOTION TO GS-5.  IN
 THAT PROCEEDING IT WAS ALLEGED THAT LAFOLLETTE, WHO HAD FILED A
 GRIEVANCE BACK IN EARLY 1978, HAD BEEN THE VICTIM OF A "CONTINUING
 COURSE OF DISCRIMINATION" SINCE FEBRUARY, 1979.
 
    7.  ON NOVEMBER 20, 1978, ELLEN LEVERENZ COMPLETED A PERFORMANCE
 APPRAISAL OF LAFOLLETTE.  NORMALLY AN APPRAISAL WOULD NOT HAVE BEEN
 "DUE" AT THIS TIME, /2/ BUT APPARENTLY LAFOLLETTE HAD APPLIED FOR SOME
 POSITION, AND THE PERSONNEL OFFICE REQUESTED LEVERENZ TO PREPARE A
 CURRENT APPRAISAL AND SPECIFIED THE FORM TO BE USED.
 
    8.  THE NARRATIVE PORTION OF THE APPRAISAL CONSISTED OF TWO AND
 ONE-HALF SINGLE-SPACED TYPEWRITTEN COMMENTS CONCERNING SIX FACTORS.  IT
 BEGAN WITH THE FOLLOWING STATEMENT:
 
    I HAVE BEEN CAROL'S MANAGER FOR A PERIOD OF SIX WEEKS.  HER
 PERFORMANCE DURING THE PERIOD
 
    COVERED WAS DISCUSSED AT LENGTH WITH HER PRIOR MANAGER AND ACTING
 MANAGER.  THIS APPRAISAL NOT
 
    ONLY REFLECTS MY EVALUATION OF HER PERFORMANCE DURING THE SHOWN
 PERIOD OF TIME I HAVE BEEN HER
 
    MANAGER BUT ALSO THAT OF STATEMENTS MADE BY HER PREVIOUS MANAGERS AND
 A CAREFUL REVIEW OF
 
    CAROL'S PERFORMANCE FILE.
 
    THIS PARTICULAR APPRAISAL FORM INVOLVED 12 FACTORS, 10 OF WHICH WERE
 THE SAME AS CONTAINED IN PRIOR AND SUBSEQUENT APPRAISAL FORMS.  THE
 NUMERICAL RATING (ON A SCALE OF 1 TO 5) ASSIGNED TO THE 10 FACTORS WAS
 DIFFERENT FROM THE LAST PRIOR APPRAISAL IN THE FOLLOWING RESPECTS:
 JUDGMENT WAS LOWERED FROM 4 TO 3;  LEARNING ABILITY WAS LOWERED FROM 4
 TO 3;  AND DEPENDABILITY WAS LOWERED FROM 5 TO 4.  THE INSTRUCTIONS ON
 THE FORM REQUIRE THE SUPERVISOR TO DESCRIBE REPRESENTATIVE EXAMPLES IN
 ORDER TO JUSTIFY ANY RATING OTHER THAN A 3.  /3/ ACCORDINGLY, THE
 NARRATIVE DEALT WITH THE 6 FACTORS IN WHICH LA FOLLETTE RECEIVED A "4"
 RATING.
 
    9.  ELLEN LEVERENZ WAS A HIGHLY CREDIBLE AND PERSUASIVE WITNESS.  I
 WAS IMPRESSED WITH HER OBJECTIVITY.  DURING HER FIRST SIX WEEKS AS
 LAFOLLETTE'S SUPERVISOR SHE IMMEDIATELY NOTICED THAT THE QUALITY OF HER
 TYPING WAS LESS THAN SATISFACTORY.  ON OCTOBER 18, SHE RETURNED A
 MEMORANDUM THREE TIMES FOR RETYPING DUE TO TOO MANY ERRORS (G.C. EXH.
 NO. 3).  IN VIEW OF HER LIMITED OPPORTUNITY TO EVALUATE LA FOLLETTE'S
 PERFORMANCE, AND SINCE SHE HAD SOME QUESTIONS CONCERNING THE PRIOR
 APPRAISAL, SHE CALLED FORMER SUPERVISORS PHILLIP BLIGHTON AND NANCY
 DURHAM.  SHE DISCUSSED EACH FACTOR ON THE FORM WITH THEM AND ASKED FOR
 SPECIFIC EXAMPLES TO SUPPORT ABOVE AVERAGE PERFORMANCE.  NOTES OF HER
 CONVERSATION WITH BLIGHTON WERE PLACED IN EVIDENCE AS RESP. EXH. NO.  3.
  /4/ BLIGHTON WAS CALLED AS A WITNESS AND HE CONFIRMED HIS CONVERSATION
 WITH LEVERENZ.  HIS TESTIMONY CORROBORATED THAT OF LEVERENZ.  THUS, IT
 IS CLEAR THAT LEVERENZ NOT ONLY CONTACTED BLIGHTON BUT ALSO RELIED ON
 THE INFORMATION PROVIDED BY HIM.  (BLIGHTON WAS NOT INVOLVED IN THE
 PENDING UNFAIR LABOR PRACTICE CASE).  BLIGHTON ADMITTED THAT HE TOLD
 LEVERENZ HE PROBABLY HAD BEEN OVERLY GENEROUS IN RATING LAFOLLETTE BUT
 THAT HE FELT PRESSURED BY LAFOLLETTE WHO PERSISTED IN INQUIRING ABOUT
 HER EVALUATION.  WHETHER BLIGHTON WAS A STRONG OR WEAK SUPERVISOR IS NOT
 FOR ME TO DECIDE.  WHAT IS IMPORTANT IS WHETHER HE WAS TELLING THE TRUTH
 IN PROVIDING HIS EVALUATION TO LEVERENZ AND WHETHER HE HAD AN ANTI-UNION
 MOTIVE IN SO DOING.  I CONCLUDE THAT HIS TESTIMONY SHOULD BE CREDITED.
 FURTHER, I FIND NO EVIDENCE WITH RESPECT TO UNION ANIMUS ON THE PART OF
 RESPONDENT, OR ITS WITNESSES IN THIS PROCEEDING.  ACCORDING TO LEVERENZ,
 NANCY OLDHAM RECONFIRMED HER OWN OBSERVATION OF LAFOLLETTE.
 
    10.  BY MEMORANDA DATED NOVEMBER 23, (RESPONDENT'S EXH. NO. 1),
 LAFOLLETTE TOOK ADVANTAGE OF HER CONTRACTUAL RIGHT TO SUBMIT A REBUTTAL
 TO THE NOVEMBER APPRAISAL.  HER REBUTTAL DISCUSSED FOUR JOB FACTORS,
 ONLY ONE OF WHICH-- LEARNING ABILITY-- HAD BEEN LOWERED FROM THE
 PREVIOUS APPRAISAL.  SINCE HER REBUTTAL DID NOT TAKE ISSUE WITH THE
 LOWER RATING WITH RESPECT TO DEPENDABILITY AND JUDGMENT, RESPONDENT
 POINTS OUT THAT LAFOLLETTE "DID NOT OBJECT AT THE TIME TO THE LOWERED
 RATINGS." TO THIS I WOULD ALSO MAKE THE OBSERVATION THAT SHE DID NOT
 FILE AN AMENDED UNFAIR LABOR PRACTICE CHARGE SO THAT THE GENERAL COUNSEL
 COULD CONSIDER-- AFTER APPROPRIATE INVESTIGATION-- AMENDING THE
 OUTSTANDING COMPLAINT AGAINST RESPONDENT.  LOGICALLY, THIS ALLEGED ACT
 OF DISCRIMINATION PROPERLY BELONGED IN CASE NO. 5-CA-230 IN WHICH THE
 GENERAL COUNSEL WAS ALLEGING A CONTINUING COURSE OF DISCRIMINATION
 AGAINST LAFOLLETTE.  AGAIN, IT MUST BE STRESSED THAT IT WAS THIS
 APPRAISAL DATED NOVEMBER 20, 1979 WHICH CONTAINED A LOWERING OF PAST
 NUMERICAL RATINGS.
 
    11.  ON JANUARY 16, 1980, LAFOLLETTE TESTIFIED AT THE HEARING IN CASE
 NO. 5-CA-230.  LEVERENZ WAS NOT A WITNESS IN THAT PROCEEDING.
 
    12.  ON FEBRUARY 11, 1980, BECAUSE LAFOLLETTE HAD FILED AN
 APPLICATION FOR ANOTHER POSITION, LEVERENZ AGAIN COMPLETED AN APPRAISAL,
 THIS TIME USING FORM 3861A.  NO CHARGES WERE MADE FROM THE NOVEMBER 20,
 1979 APPRAISAL WITH RESPECT TO NUMERICAL RATINGS AND NARRATIVE COMMENTS.
  /5/
 
    13.  LAFOLLETTE TESTIFIED THAT SHE "FELT" LIKE SHE WAS BEING
 DISCRIMINATED AGAINST (TR. 47, LINE 14, TR. 48, LINE 14) BUT THE
 EXAMPLES CITED ARE UNIMPRESSIVE.  INDEED, THERE'S NO WAY OF TELLING FROM
 HER TESTIMONY WHETHER THESE EXAMPLES OCCURRED BEFORE THE NOVEMBER 20
 APPRAISAL, BETWEEN NOVEMBER 20 AND FEBRUARY 11, OR AFTER FEBRUARY 11.
 IT SEEMS TO ME, BASED UPON MY OBSERVATION OF LAFOLLETTE-- A VOLATILE AND
 FLIGHTY INDIVIDUAL-- THAT SHE SEEMS TO EQUATE ANY CRITICISM OF HER
 PERFORMANCE WITH DISCRIMINATION.  TO THE EXTENT THAT LAFOLLETTE'S
 TESTIMONY IS NOT IN CONFLICT WITE LEVERENZ, IT CAN BE CREDITED.
 HOWEVER, IT SIMPLY DOES NOT ADD UP TO PROOF OF DISPARATE TREATMENT OR
 PROOF OF DISCRIMINATORY MOTIVATION.
 
                     DISCUSSION AND CONCLUSIONS OF LAW
 
    SECTION 2423.16 OF THE RULES AND REGULATIONS CLEARLY STATE, "THE
 BURDEN OF PROVING THE ALLEGATIONS OF THE COMPLAINT BY A PREPONDERANCE OF
 THE EVIDENCE" RESTS WITH THE COUNSEL FOR THE GENERAL COUNSEL.  IN THE
 INSTANT CASE, IT IS ALLEGED IN THE COMPLAINT THAT SINCE ON OR ABOUT
 FEBRUARY 11, 1980 AND CONTINUING TO DATE THE RESPONDENT HAS VIOLATED
 SECTION 7116(A)(1) AND (4) OF THE STATUTE BY DISCRIMINATING AGAINST
 CAROL LAFOLLETTE BECAUSE SHE PARTICIPATED IN A PREVIOUS UNFAIR LABOR
 PRACTICE CASE.  SPECIFICALLY, IT IS ALLEGED THAT THIS VIOLATION OCCURRED
 THROUGH THE RE-EVALUATION OF MS. LAFOLLETTE'S PERFORMANCE ON OR ABOUT
 FEBRUARY 11, 1980 AND ISSUANCE TO HER OF AN EVALUATION "LOWER THAN THAT
 CURRENTLY IN EFFECT." AS THE COMPLAINT STATES, "THIS ACTION WAS TAKEN
 BECAUSE MS. LAFOLLETTE HAD INITIATED AN UNFAIR LABOR CHARGE AGAINST THE
 RESPONDENT AND HAD GIVEN STATEMENTS, INFORMATION, AND TESTIMONY INCIDENT
 THERETO, THE HEARING HAVING BEEN HELD ON JANUARY 16, 1980."
 
    SECTION 7116(A)(1) OF THE STATUTE STATES THAT IT SHALL BE AN UNFAIR
 LABOR PRACTICE FOR AN AGENCY "TO INTERFERE WITH, RESTRAIN, OR COERCE ANY
 EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER THIS
 CHAPTER." SECTION 7116(A)(4) STATES THAT IT IS AN UNFAIR LABOR PRACTICE
 FOR AN AGENCY "TO DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN
 EMPLOYEE BECAUSE THE EMPLOYEE HAS FILED A COMPLAINT, AFFIDAVIT, OR
 PETITION, OR HAS GIVEN ANY INFORMATION OR TESTIMONY UNDER THIS CHAPTER."
 IT IS ACKNOWLEDGED THAT THE ALLEGED DISCRIMINATEE IN THE INSTANT CASE,
 MS. CAROL LAFOLLETTE, WAS ALSO THE ALLEGED DISCRIMINATEE IN A PREVIOUS
 UNFAIR LABOR PRACTICE COMPLAINT, A HEARING ON WHICH WAS HELD ON JANUARY
 16, 1980, AND THAT SHE PROVIDED INFORMATION AND TESTIMONY IN THAT CASE.
 
    IN VIEW OF THE ABSENCE OF DECISIONS INTERPRETING THE STATUTE, SIMILAR
 PROVISIONS CONTAINED IN ITS PREDECESSOR, EXECUTIVE ORDER 11491, AS
 AMENDED, MUST BE LOOKED TO TO DETERMINE THE PROPER ELEMENTS OF PROOF
 REQUIRED TO ESTABLISH STATUTORY VIOLATIONS.  THE COMPANION REQUIREMENT
 TO SECTION 7116(A)(4) WAS SECTION 19(A)(4) OF THE EXECUTIVE ORDER.
 DECISIONS INTERPRETING SECTION 19(A)(4) CLEARLY STATE THAT VIOLATIONS
 THEREOF MUST BE BASED UPON SOME DISCRIMINATORY MOTIVATION IN THE
 EMPLOYER'S CONDUCT.  FEDERAL MEDIATION AND CONCILIATION SERVICE, 1 FLRA
 NO. 36 (1979);  NLRB REGION 17 AND NLRB, A/SLMR NO. 1015, (1978).
 
    VIOLATIONS OF SECTION 19(A)(4) ARE ALSO ANALOGOUS TO VIOLATIONS OF
 SECTION 19(A)(2) WHICH STATED THAT AGENCY MANAGEMENT SHALL NOT
 "ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
 DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
 CONDITIONS OF EMPLOYMENT." (THE CORRESPONDING STATUTORY SECTION IS FOUND
 AT SECTION 7116(A)(2) WHICH CONTAINS SUBSTANTIVELY THE SAME
 PROHIBITION.) A VIOLATION OF SECTION 19(A)(2) REQUIRED THE ESTABLISHMENT
 OF THREE SPECIFIC ELEMENTS:  (1) THAT THE EMPLOYEE ENGAGED IN SOME FORM
 OF PROTECTED ACTIVITY;  (2) THAT THE EMPLOYER HAD KNOWLEDGE OF SUCH
 ACTIVITY;  AND (3) THAT THE EMPLOYEE SUFFERED DISPARATE TREATMENT AS A
 RESULT OF HIS PROTECTED ACTIVITY.  /6/ THE THIRD ELEMENT IS SOMETIMES
 DESCRIBED IN TERMS OF AN EMPLOYER'S "DISCRIMINATORY MOTIVE," A FINDING
 WHICH IS EASIER TO INFER WHERE THERE IS EVIDENCE OF UNION ANIMUS.  THE
 RECORD IN THIS CASE WILL BE REVIEWED WITH THESE ELEMENTS IN MIND.
 
    PROTECTED ACTIVITY OF CAROL LAFOLLETTE.
 
    1.  LAFOLLETTE FILED AN UNFAIR LABOR CHARGE, GAVE AN AFFIDAVIT TO THE
 AUTHORITY AGENT, WAS INTERVIEWED DURING PRETRIAL PREPARATION, AND GAVE
 TESTIMONY AT AN UNFAIR LABOR PRACTICE HEARING.  THERE IS NO DISPUTE, AND
 I FIND, THAT SHE WAS ENGAGED IN PROTECTED ACTIVITY.
 
    KNOWLEDGE OF LAFOLLETTE'S PROTECTED ACTIVITY.
 
    1.  WHEN LAFOLLETTE FILED THE UNFAIR LABOR PRACTICE CHARGE IN CASE
 NO. 5-CA-230, HER SUPERVISOR WAS NANCY DURHAM, NOT ELLEN LEVERENZ.
 HOWEVER, BY THE TIME THAT LEVERENZ COMPLETED HER FIRST APPRAISAL OF
 LAFOLLETTE ON NOVEMBER 20, AFTER CONSULTATION WITH DURHAM, LAFOLLETTE
 HAD FILED AN AMENDED CHARGE AND THE REGIONAL DIRECTOR HAS ISSUED A
 COMPLAINT.  FROM THE FOREGOING, I INFER THAT LEVERENZ HAD KNOWLEDGE OF
 LAFOLLETTE'S INVOLVEMENT IN CASE NO.  5-CA-230 AS OF NOVEMBER 20.
 ACCORDINGLY, I FIND IT UNNECESSARY TO DECIDE WHETHER LAFOLLETTE'S BEING
 ON "OFFICIAL TIME" ON OCTOBER 16 TO MEET WITH A REPRESENTATIVE OF THE
 GENERAL COUNSEL IS SUFFICIENT EVIDENCE FROM WHICH TO DRAW AN INFERENCE
 THAT LEVERENZ KNEW ANYTHING ABOUT IT.  LAFOLLETTE WAS NOT ASKED TO
 EXPLAIN WHETHER SHE RECEIVED PERMISSION FOR OFFICIAL TIME FROM LEVERENZ
 OR FROM SOME OTHER MANAGEMENT OFFICIAL.  NOR DOES THE RECORD REFLECT
 WHETHER LEVERENZ WAS ON DUTY THAT PARTICULAR DAY.  ON THIS ASPECT OF THE
 CASE, IT WAS INCUMBENT UPON THE GENERAL COUNSEL TO PRESENT ADDITIONAL
 EVIDENCE.
 
    2.  IN JANUARY, LAFOLLETTE TESTIFIED AT THE HEARING IN CASE NO.
 5-CA-230.  THE HEARING INVOLVED THE TESTIMONY OF NUMEROUS MANAGEMENT
 WITNESSES;  LAFOLLETTE WORKS IN A RELATIVELY SMALL OFFICE AND DOESN'T
 STRIKE ME AS THE KIND OF PERSON WHO COULD OR WOULD REMAIN SILENT ABOUT
 HER PARTICIPATION IN THE HEARING.  IN THESE CIRCUMSTANCES, I AM
 COMPELLED TO INFER THAT LEVERENZ HAD KNOWLEDGE OF LAFOLLETTE'S PROTECTED
 ACTIVITY.  RESPONDENT'S CONTENTION TO THE CONTRARY IS ACCORDINGLY
 REJECTED.
 
    ALLEGED DISCRIMINATION AGAINST LAFOLLETTE.
 
    1.  THE TESTIMONY OF LAFOLLETTE IS NOT HELPFUL IN ESTABLISHING
 DISPARATE TREATMENT.  THE MERE FACT THAT SHE "FELT" LIKE SHE WAS BEING
 TREATED DIFFERENTLY IS INSUFFICIENT TO ESTABLISH DISCRIMINATION.
 
    2.  THE NOVEMBER 20 APPRAISAL IS NOT ALLEGED IN THE COMPLAINT AS AN
 ACT OF DISCRIMINATION AGAINST LAFOLLETTE AND IT IS FRUITLESS TO ENGAGE
 IN IDLE CONJECTURE AS TO WHY THIS INCIDENT WAS NOT MADE PART OF CASE NO.
 5-CA-230.  SUFFICE TO SAY, LAFOLLETTE'S REBUTTAL TO THE APPRAISAL ONLY
 TOOK ISSUE WITH ONE FACTOR WHICH HAD BEEN LOWERED AND SHE APPARENTLY WAS
 NOT SUFFICIENTLY UPSET ABOUT THE MATTER TO FILE A CHARGE AT THAT TIME.
 IN ANY EVENT, I CONCLUDE THAT THIS APPRAISAL WAS SIMPLY AN HONEST
 EVALUATION OF LAFOLLETTE'S PERFORMANCE BY LEVERENZ, BASED UPON HER OWN
 SUBJECTIVE EVALUATION AS SUPPLEMENTED BY THE COMMENTS OF PRIOR
 SUPERVISORS BLIGHTON AND DURHAM.  /7/
 
    3.  THE COMPLAINT ALLEGES THAT THE DISCRIMINATION AGAINST LAFOLLETTE
 BEGAN ON FEBRUARY 11, 1980 WHEN "ELLEN M. LEVERENZ RE-EVALUATED THE
 PERFORMANCE OF CAROL LAFOLLETTE AND ISSUED TO HER AN EVALUATION LOWER
 THAN THAT CURRENTLY IN EFFECT." /8/ THIS ALLEGATION OF THE COMPLAINT IS
 NOT SUBSTANTIATED BY THE EVIDENCE.  AS PREVIOUSLY FOUND, THE FEBRUARY 11
 APPRAISAL MADE NO CHANGES IN THE NUMERICAL RATINGS PREVIOUSLY MADE IN
 THE NOVEMBER 20 APPRAISAL.  EXCEPT FOR THE USE OF A DIFFERENT FORM, THE
 TWO APPRAISALS WERE IDENTICAL.  THERFORE, NOTWITHSTANDING LAFOLLETTE'S
 POST-NOVEMBER 20 PARTICIPATION IN PRE-TRAIL PREPARATION AND THE UNFAIR
 LABOR PRACTICE HEARING ITSELF, ALL THAT LEVERENZ DID ON FEBRUARY 11 WAS
 TO ISSUE A DUPLICATE OF A PRIOR APPRAISAL BECAUSE LAFOLLETTE HAD APPLIED
 FOR ANOTHER POSITION.  CLEARLY, THERE WAS NO DISPARATE TREATMENT HERE,
 AND THE MAIN ELEMENT UPON WHICH THE COMPLAINT IS BASED MUST FALL.  /9/
 
    SUMMARY
 
    HAVING FOUND THAT THE GENERAL COUNSEL HAS NOT SUSTAINED HIS BURDEN OF
 PROOF IN ESTABLISHING A VIOLATION OF SECTIONS 7116(A)(1) AND (4), I
 RECOMMEND THAT THE FEDERAL LABOR RELATIONS AUTHORITY ADOPT THE
 FOLLOWING:
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT BE, AND IT HEREBY IS,
 DISMISSED IN ITS ENTIRETY.
 
                         FRANCIS E. DOWD
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  APRIL 10, 1981
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ MS. LEVERENZ, WHO WAS NAMED IN THE COMPLAINT AS A SUPERVISOR OR
 AGENT OF RESPONDENT, APPEARED AS A WITNESS IN RESPONSE TO A SUBPOENA
 ISSUED BY THE REGIONAL DIRECTOR.  RESPONDENT'S COUNSEL MOVED AT THE
 HEARING TO QUASH THE SUBPOENA ON THE GROUND THAT NEITHER RESPONDENT NOR
 ITS COUNSEL WAS SERVED WITH A COPY OF THE SUBPOENA.  THE MOTION WAS
 DENIED AND THAT RULING IS REAFFIRMED.  ASSUMING, ARGUENDO, THAT THE
 RULES AND REGULATIONS REQUIRE SERVICE ON A PARTY AND ITS COUNSEL,
 RESPONDENT HAS FAILED TO SHOW ANY PREJUDICE BY THE REGIONAL DIRECTOR'S
 ACTION OR BY MY DENIAL OF THE MOTION TO QUASH.  ACCORDINGLY, I FIND IT
 UNNECESSARY TO DECIDE WHETHER SECTION 2429.7 OF THE RULES AND
 REGULATIONS, WHEN READ TOGETHER WITH SECTION 2429.27 AND/OR 2429.12,
 REQUIRE SERVICE ON A PARTY AND ITS REPRESENTATIVE.
 
    /2/ SHE HAD BEEN EVALUATED ON MARCH 16, 1978 BY HER FORMER
 SUPERVISOR, PHILLIP BLIGHTON, AND THIS EVALUATION HAD BEEN RECERTIFIED
 FOUR AND ONE-HALF MONTHS LATE BY MR. LARSON ON AUGUST 1, 1979.  BY
 "RECERTIFYING" THE OLD APPRAISAL, IT WAS NOT NECESSARY TO COMPLETE A NEW
 ONE.
 
    /3/ APPARENTLY, A RATING OF 3 SIGNIFIES SATISFACTORY PERFORMANCE,
 WHILE A 4 RATING IS ABOVE AVERAGE.
 
    /4/ FOR EXAMPLE, THE NOTES STATE THAT LAFOLLETTE WAS "ALWAYS PUMPING
 EMPLOYEES TO FIND OUT THEIR TEST SCORES AND HOW WELL THEY DID ON THEIR
 PANEL INTERVIEWS." LEVERENZ WAS NOT AWARE OF THE FOREGOING BUT, AFTER
 BECOMING LAFOLLETTE'S SUPERVISOR, SHE DID LEARN THAT LAFOLLETTE "WAVED
 AN EVALUATION OF A FELLOW EMPLOYEE IN THE WORK AREA AND MADE A
 STATEMENT-- HAVE YOU EVER SEEN AN EVALUATION WITH STRAIGHT 5'S?"
 BLIGHTON ALSO TOLD LEVERENZ THAT HE SOMETIMES TYPED SENSITIVE PERSONNEL
 ACTIONS AND EVALUATIONS HERSELF BECAUSE HE DID NOT TRUST LAFOLLETTE TO
 KEEP THE MATTER CONFIDENTIAL.  I HAVE NOT RECITED IN DETAIL THE PROBLEMS
 WITH LAFOLLETTE BECAUSE IT DOESN'T APPEAR TO BE NECESSARY TO THIS
 DECISION.
 
    /5/ THE FORM ITSELF CONTAINED TWO LESS FACTORS TO BE EVALUATED,
 NEITHER OF WHICH ARE PERTINENT HEREIN.  ALSO OMITTED WAS THE REFERENCE
 TO CONSULTATION WITH PRIOR SUPERVISORS (QUOTED ELSEWHERE IN THIS
 DECISION).
 
    /6/ CF. VETERANS ADMINISTRATION CANTEEN SERVICE, 7 A/SLMR 674.
 
    /7/ "THE MERE FACT THAT . . . PRIOR APPRAISALS . . . WERE NUMERICALLY
 HIGHER . . . DOES NOT, IN THE ABSENCE OF ANTIPATHY TOWARD HER BECAUSE OF
 UNION ACTIVITIES, INDICATE THAT THE APPRAISAL WAS DISCRIMINATORILY
 MOTIVATED." DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
 INDIANAPOLIS, INDIANA, 7 A/SLMR 844, 881.
 
    /8/ I AM CONSTRAINED TO OBSERVE THAT THE GENERAL COUNSEL'S BRIEF
 INTENTIONALLY GLOSSES OVER THE FACT THAT THE COMPLAINT ALLEGES FEBRUARY
 11 AS THE COMMENCEMENT OF THE ALLEGED DISCRIMINATION AND ARGUES QUITE
 STRONGLY THAT THE NOVEMBER 20 APPRAISAL WAS DISCRIMINATORILY MOTIVATED.
 THE GENERAL COUNSEL WOULD HAVE IT BOTH WAYS FOR IF NOVEMBER 20 IS THE
 CRITICAL DATE THEN IT HARDLY COULD BE CLAIMED THAT LAFOLLETTE WAS BEING
 DISCRIMINATED AGAINST BECAUSE OF HER TESTIMONY IN THE JANUARY 1980
 HEARING.
 
    /9/ ASSUMING, ARGUENDO, THAT A FINDING OF DISPARATE TREATMENT COULD
 BE MADE ON THIS RECORD, I WOULD NEVERTHELESS CONCLUDE THAT THE GENERAL
 COUNSEL HAS NOT PROVEN IT WAS MOTIVATED BY ANTI-UNION CONSIDERATIONS.
 CLEARLY, MERE SUSPICION IS NOT ENOUGH TO SUPPORT A FINDING.  NLRB V
 MONTGOMERY