United States Department of Labor, Employment Standards Administration, Office of Federal Contract Compliance Programs, Columbus, Ohio (Respondent) and Robert A. Evans, An Individual (Charging Party)



[ v08 p451 ]
08:0451(96)CA
The decision of the Authority follows:


 8 FLRA No. 96
 
 UNITED STATES DEPARTMENT OF LABOR
 EMPLOYMENT STANDARDS ADMINISTRATION
 OFFICE OF FEDERAL CONTRACT COMPLIANCE
 PROGRAMS, COLUMBUS, OHIO
 Respondent
 
 and
 
 ROBERT A. EVANS, AN INDIVIDUAL
 Charging Party
 
                                            Case No. 5-CA-698
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN
 CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1) AND (2) OF THE
 STATUTE AND RECOMMENDING THAT THE CASE BE DISMISSED IN ITS ENTIRETY.
 EXCEPTIONS TO THE JUDGE'S DECISION WERE FILED BY THE GENERAL COUNSEL,
 AND AN OPPOSITION WAS FILED TO THE GENERAL COUNSEL'S EXCEPTIONS BY THE
 RESPONDENT.
 
    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, THE AUTHORITY HEREBY ADOPTS THE
 JUDGE'S FINDINGS, /1/ CONCLUSION AND RECOMMENDATION.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-698 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
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE GENERAL COUNSEL IN ESSENCE EXCEPTED TO CERTAIN CREDIBILITY
 FINDINGS MADE BY THE JUDGE.  THE DEMEANOR OF WITNESSES IS A FACTOR OF
 CONSEQUENCE IN RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD
 THE ADVANTAGE OF OBSERVING THE WITNESSES WHILE THEY TESTIFIED.  THE
 AUTHORITY WILL NOT OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO
 CREDIBILITY UNLESS A CLEAR PREPONDERANCE OF ALL THE RELEVANT EVIDENCE
 DEMONSTRATES SUCH RESOLUTION WAS INCORRECT.  THE AUTHORITY HAS EXAMINED
 THE RECORD CAREFULLY, AND FINDS NO BASIS FOR REVERSING THE JUDGE'S
 CREDIBILITY FINDINGS.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    UNITED STATES DEPARTMENT OF LABOR, EMPLOYMENT STANDARDS
    ADMINISTRATION, OFFICE OF FEDERAL CONTRACT COMPLIANCE
    PROGRAMS, COLUMBUS, OHIO
                                RESPONDENT
 
    AND
 
    ROBERT A. EVANS, AN INDIVIDUAL
                              CHARGING PARTY
 
 
    SHEILA K. CRONAN,
    ATTORNEY FOR RESPONDENT
 
    JUDITH A. RAMEY,
    ATTORNEY FOR THE GENERAL COUNSEL
    FEDERAL LABOR RELATIONS AUTHORITY
 
    BEFORE:  ISABELLE R. CAPPELLO
    ADMINISTRATIVE LAW JUDGE
 
                             CASE NO. 5-CA-698
 
                                 DECISION
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, CHAPTER 7, TITLE 5 OF THE U.S. CODE
 (HEREINAFTER REFERRED TO AS THE "STATUTE") AND THE RULES AND REGULATIONS
 ISSUED THEREUNDER AND PUBLISHED IN 45 FED.REG. 3482-3524 (1/17/80), 5
 CFR 2421 ET SEQ.
 
    A COMPLAINT AND NOTICE OF HEARING WAS FILED BY THE REGIONAL DIRECTOR,
 CHICAGO REGION, OF THE FEDERAL LABOR RELATIONS AUTHORITY (HEREINAFTER,
 THE "AUTHORITY") ON NOVEMBER 25, 1980.  THE COMPLAINT ALLEGES THAT
 RESPONDENT HAS VIOLATED, AND IS VIOLATING SECTION 7116 (A)(1) AND (2) OF
 THE STATUTE, /1/ BY AND THROUGH J. ROBERT MACK, BY THE FOLLOWING ALLEGED
 ACTS AND CONDUCT.  ON OR ABOUT SEPTEMBER 5, 1980, /2/ MR. MACK ISSUED A
 MEMORANDUM CRITICAL OF THE WORK PERFORMANCE OF ROBERT A. EVANS BECAUSE,
 ON OR ABOUT SEPTEMBER 2, MR. EVANS HAD FILED A GRIEVANCE WITH HIS UNION
 CONCERNING A MEMORANDUM AND COUNSELLING HE HAD RECEIVED FROM MR. MACK
 ON
 AUGUST 22.  RESPONDENT DENIES THAT A VIOLATION HAS OCCURRED.
 
    A HEARING ON THE MATTER WAS HELD ON FEBRUARY 26, 1981, IN COLUMBUS,
 OHIO.  THE PARTIES APPEARED AND WERE GIVEN A FULL OPPORTUNITY TO ADDUCE
 EVIDENCE AND EXAMINE AND CROSS-EXAMINE WITNESSES.  BRIEFS WERE FILED ON
 MARCH 27, 1981, BY THE GENERAL COUNSEL OF THE AUTHORITY, AND ON MARCH
 30, 1981, BY THE RESPONDENT.  BASED ON THE RECORD MADE, MY OBSERVATION
 OF THE WITNESSES AND THEIR DEMEANOR, AND THE BRIEFS, I MAKE THE
 FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDED ORDER.
 
                               FINDINGS /3/
 
    1.  THE UNITED STATES DEPARTMENT OF LABOR OPERATES A FACILITY AT
 COLUMBUS, OHIO, KNOWN AS THE EMPLOYMENT STANDARDS ADMINISTRATION, OFFICE
 OF FEDERAL CONTRACT COMPLIANCE PROGRAMS.  (IT WILL ALSO BE REFERRED TO
 HEREIN AS THE "RESPONDENT.") L.W. FARROW IS DIRECTOR OF THE COLUMBUS
 AREA OFFICE.  J. ROBERT MACK IS AN EQUAL OPPORTUNITY SPECIALIST,
 SUPERVISOR, OF RESPONDENT.  KAREN WOODS IS A EQUAL OPPORTUNITY
 SPECIALIST, TEAM LEADER, AND IS ASSIGNED TO WORK FOR MR. MACK. ROBERT A.
 EVANS IS AN EQUAL OPPORTUNITY SPECIALIST (HEREINAFTER, "EOS") ASSIGNED
 TO MS. WOODS' TEAM.
 
    2.  SINCE ON OR ABOUT AUGUST 17, 1978, THE UNITED STATES DEPARTMENT
 OF LABOR HAS RECOGNIZED THE NATIONAL COUNCIL OF FIELD LABOR LOCALS,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, AS THE EXCLUSIVE
 COLLECTIVE BARGAINING REPRESENTATIVE OF CERTAIN OF ITS EMPLOYEES, IN A
 NATIONWIDE UNIT.  EMPLOYEES WHO WORK AS EOSS ARE MEMBERS OF THE
 BARGAINING UNIT.  LOCAL 2089 IS THE AGENT OF THE NATIONAL COUNCIL WITH
 RESPECT TO EMPLOYEES OF TEE COLUMBUS ACTIVITY.  YOULA BRANT, AN EOS
 EMPLOYEE OF RESPONDENT, WAS APPOINTED AS UNION STEWARD, AT THE COLUMBUS
 ACTIVITY, ON JULY 14, AND HAS BEEN ENGAGED IN SOME REPRESENTATIONAL
 ACTIVITY SINCE ABOUT MAY 14.
 
    3.  MR. EVANS HAS WORKED AS AN EOS FOR RESPONDENT SINCE OCTOBER 13,
 1979.  ON MARCH 31 HE RECEIVED A "SATISFACTORY" PERFORMANCE RATING FROM
 MR. MACK, OUT OF OTHER POSSIBLE CHOICES OF "OUTSTANDING" AND
 "UNSATISFACTORY." MR. MACK CHECKED MR. EVANS AS "PROFICIENT" OUT OF A
 POSSIBLE "SUPERIOR" AND "PASSABLE."
 
    4.  ON MAY 8, MR. MACK COMPLETED A SUPERVISOR'S REPORT ON EMPLOYEE
 AFTER PLACEMENT ON MR. EVANS.  MR. MACK WROTE ON THE FORM:
 
    I BELIEVE MR. EVANS HAS THE GRASP OF THE BASIC POLICIES AND
 PROCEDURES OF OUR PROGRAM AND
 
    IS COMPETENT TO PERFORM INDEPENDENT WORK OF AVERAGE COMPLEXITY.  HE
 WILL REQUIRE CONTINUED
 
    ASSISTANCE AND GUIDANCE ON FINE POINTS AND INFREQUENTLY IDENTIFIED
 PROBLEMS.
 
    MR. EVANS IS CURRENTLY ATTENDING THE OFCCP BASIC TRAINING COURSE
 "DESK AUDIT ANALYSIS" FROM
 
    APRIL 28 TO MAY 9 . . . WITH ADDITIONAL OJT /4/ EXPERIENCE HE SHOULD
 BECOME A PRODUCTIVE EOS
 
    MEETING ALL THE STANDARDS OF HIS POSITION.
 
    MR. MACK ALSO NOTED THAT MR. EVANS HAD RECEIVED SUPERVISED DESK AUDIT
 ANALYSIS, OJT, FOR SEVERAL MAJOR CASES, PARTICIPATED IN THREE ON-SITE
 REVIEWS, ONE OF WHICH WAS DONE INDEPENDENTLY, AND HAD INVESTIGATED,
 UNDER CLOSE SUPERVISION, A COMPLAINT ALLEGING SYSTEMIC DISCRIMINATION.
 
    5.  A REGIONAL ACCOUNTABILITY REVIEW WAS HELD IN MAY.  MS. BRANT
 COMPLAINED TO THE REGIONAL REPRESENTATIVE THAT EOSS WERE BEING FORCED TO
 CONDUCT REVIEWS OVER AND ABOVE WHAT THE POSITION DESCRIPTION REQUIRED.
 SOMETIME AFTER THIS MEETING, AN EOS, MARLENE SHANKLIN, TESTIFIED THAT
 HER SUPERVISOR, PHILIP STEPTEAU, A PEER OF MR. MACK'S, TOLD HER THAT
 BECAUSE OF "TROUBLE MAKERS" IN THE OFFICE, PROMOTIONS WOULD NOT BE AS
 AUTOMATIC AS ONCE EXPECTED, THAT "THE GOOD WOULD HAVE TO SUFFER WITH THE
 BAD," AND THAT THE WORK OF EOSS WAS GOING TO BE "CLOSELY SCRUTINIZED."
 (TR 56-61, R 2) MS. SHANKLIN APPEARED TO BE SURE OF HER FACTS.  MR.
 STEPTEAU'S BARE DENIALS OF THEIR ACCURACY WERE NOT GIVEN IN A CONFIDENT
 MANNER.  ACCORDINGLY, I CREDIT MS. SHANKLIN'S TESTIMONY, ON THIS POINT.
 
    6.  ON JUNE 10, MR. EVANS WAS PRESENT AT A MEETING BETWEEN MS.  BRANT
 AND MR. FARROW, MR. EVANS WAS ASKED BY MS. BRANT TO BE PRESENT "AS A
 WITNESS." (TR 26) MR.  FARROW INQUIRED AS TO WHETHER MR. EVANS WAS THERE
 AS A UNION STEWARD, OR A REPRESENTATIVE.  MR.  EVANS HOLDS NO UNION
 OFFICE.
 
    7.  ON JULY 15, MR. MACK FILLED OUT A SUPERVISOR'S REPORT ON EMPLOYEE
 DURING PROBATIONARY PERIOD ON MR. EVANS.  THIS REPORT WAS REQUESTED ON
 JUNE 12, BY RESPONDENT.  THE REPORT IS ONE WHICH IS ROUTINELY FILLED OUT
 WHILE AN EMPLOYEE IS SERVING THE NINTH MONTH OF HIS REQUIRED
 PROBATIONARY PERIOD.  SEE GC 5, ITEM 5.  MR. EVANS WAS APPARENTLY HIRED
 ON OCTOBER 13, 1979.  SEE TR 21.  MR. MACK RECOMMENDED RETAINING MR.
 EVANS, "AS PRESENTLY ASSIGNED AND THAT HE CONTINUE TO RECEIVE OJT FOR
 THOSE AREAS WHERE IMPROVEMENT IS NEEDED." (GC 5, ITEM 6D) MR. MACK
 DETAILED SOME UNFLATTERING INSTANCES OF MR. EVAN'S INABILITY GET ALONG
 WITH OTHER EMPLOYEES, AND NOTED THAT HE HAD VERBALLY COUNSELLED MR.
 EVANS REGARDING REPORTS FROM FELLOW EMPLOYEES THAT HE "DISPLAYED
 EXCESSIVE EMOTIONAL DISTURBANCE ON AT LEAST THREE OCCASIONS." (GC 5,
 ITEM 6A) MR. MACK DESCRIBED MR. EVANS' "WORK PERFORMANCE" AS FOLLOWS:
 
    MR. EVANS HAS DEMONSTRATED A WORKING KNOWLEDGE OF THE BASIC
 PRINCIPLES OF COMPLIANCE
 
    REVIEWS AND COMPLAINT INVESTIGATIONS.  RECENT WORK ON A POTENTIAL
 AFFECTED CLASS, HOWEVER,
 
    SHOWS A NEED FOR BETTER UNDERSTANDING OF THE ADVERSE EFFECT FORMULA
 AND SUCCEEDING STEPS FOR
 
    APPROPRIATE IDENTIFICATION OF AFFECTED CLASSES.  MR. EVANS IS MEETING
 THE STANDARDS OF HIS
 
    POSITION IN ACCOMPLISHMENT OF ASSISTED REVIEWS INVOLVING BOTH COMPLEX
 AND NON-COMPLEX
 
    ISSUES.  (GC, ITEM 6C)
 
    8.  ON AUGUST 22, MR. EVANS RECEIVED FROM MR. MACK A MEMORANDUM AND A
 COUNSELLING ON ALLEGED UNPROFESSIONAL AND DISRUPTIVE CONDUCT.  SEE GC 2.
 
    9.  BETWEEN JUNE AND SEPTEMBER, MS. WOODS WORKED ON THREE MAJOR
 COMPLIANCE REVIEWS WITH MR. EVANS.  MISTAKES WERE FOUND ON EACH.  MS.
 WOODS SHARED THESE PROBLEMS WITH MR. MACK.
 
    10.  ON AUGUST 26, MS. WOODS WROTE A MEMORANDUM TO MR. MACK IN WHICH
 SHE DISCUSSED PROBLEMS WITH THE DESK AUDIT OF ARMCO STEEL PERFORMED BY
 MR. EVANS.
 
    11.  ON SEPTEMBER 2 MR. EVANS SIGNED A GRIEVANCE CONCERNING THE
 MEMORANDUM AND COUNSELLING HE HAD RECEIVED FROM MR. MACK ON AUGUST 22.
 MS. BRANT DELIVERED THE GRIEVANCE TO MR. MACK, IN A WHITE ENVELOPE, ON
 SEPTEMBER 4.
 
    12.  ON SEPTEMBER 3, MR. EVANS MET WITH HIS TEAM LEADER, MS. WOODS,
 TO DISCUSS THE PERFORMANCE OF A DESK AUDIT ON STANDARD OIL OF LIMA,
 OHIO.  /5/ A DESK AUDIT IS AN ANALYSIS OF A FEDERAL CONTRACTOR TO INSURE
 THAT ALL EQUAL OPPORTUNITY POLICIES HAVE BEEN IMPLEMENTED BY PROMOTIONS,
 TRANSFERS, AND OTHER PERSONNEL ACTIONS.
 
    13.  ON SEPTEMBER 3, /6/ MR. MACK CALLED MR. EVANS AND MS. WOODS TO
 HIS OFFICE TO GO OVER THE DESK AUDIT DONE BY MR. EVANS ON STANDARD OIL,
 BECAUSE A DECISION HAD TO BE MADE ON WHETHER AN ON-SITE REVIEW SHOULD BE
 SCHEDULED.  MS. WOODS STATED THAT A QUICK REVIEW SHE HAD DONE OF MR.
 EVANS' WORKPAPERS INDICATED SOME PROBLEM WITH MR. EVANS' STATISTICAL
 ANALYSIS.  MR. MACK TOLD HER TO CHECK AND ADVISE HIM.  MR. MACK ALSO
 TOLD HER THAT HE WANTED TO SEE THE ENTIRE CASE FILE AND THE WORKPAPERS,
 FOR HIS OWN REVIEW.  WITHIN HALF AN HOUR, MS. WOODS COMPLIED.  MR. MACK
 TESTIFIED THAT HE THEN BEGAN HIS OWN REVIEW OF MR. EVANS' WORK AND FELT
 THAT HE HAD TO REDUCE HIS REVIEW TO WRITING BECAUSE OF THE NUMBER OF
 SERIOUS DEFICIENCIES FOUND.  MR. MACK TESTIFIED THAT HE SPENT TWO HOURS
 OF OFFICE TIME AND TWO TO THREE HOURS OF TIME AT HOME TO COMPLETE HIS
 REVIEW.  THE WORKPAPERS REVIEWED CONSISTED OF 25 PAGES.  SEE R 16.
 
    14.  THE SECRETARY WHO TYPED THE STANDARD OIL CRITIQUE BY MR. MACK
 WAS CALLED AS A WITNESS.  SHE IS NO LONGER EMPLOYED BY RESPONDENT.  SHE
 COULD NOT RECALL EXACTLY WHEN SHE TYPED IT.  AT FIRST SHE RECALLED
 SEPTEMBER 2.  THEN SHE WAS SHOWN THE DOCUMENT, DATED SEPTEMBER 5.  SHE
 TESTIFIED THAT SHE "USUALLY" GOT SUCH MEMORANDUMS OUT ON THE DAY THEY
 WERE GIVEN TO HER.  (TR 169) ON CROSS-EXAMINATION BY COUNSEL FOR
 RESPONDENT, SHE ACKNOWLEDGED THAT IT WAS "POSSIBLE" THAT SHE COULD HAVE
 BEEN GIVEN THE CRITIQUE, FOR TYPING, ON SEPTEMBER 4.  (TR 172 SHE ALSO
 TESTIFIED THAT MR. MACK WAS GENERALLY A "VERY PATIENT" MAN, WITH NO
 SHOWING OF HOSTILITY