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 OR ANGER ABOUT THE FILING OF GRIEVANCES.  (TR
 171-172)
 
    15.  WHETHER MR. MACK COMPLETED HIS CRITIQUE ON SEPTEMBER 3, BEFORE
 RECEIVING MR. EVANS' GRIEVANCE ON SEPTEMBER 4, IS CRITICAL TO THIS
 PROCEEDING.  HE TESTIFIED THAT HE DID.  HE WAS AT EASE, AS A WITNESS,
 AND SEEMED TO BE SURE OF HIS FACTS.  HIS FORMER SECRETARY ATTESTED TO
 THE FACT THAT THE FILING OF GRIEVANCES DID NOT GENERALLY PROVOKE
 HOSTILITY OR ANGER IN HIM.  IT IS UNDISPUTED THAT THE REVIEW PROCESS OF
 THE PERFORMANCE INVOLVED BEGAN ON SEPTEMBER 3.  SEE TR 137 AND FINDING
 13, ABOVE.  THE CRITIQUE WAS AN HONEST ONE, AS MR. MACK DEMONSTRATED, ON
 A POINT-BY-POINT BASIS, AT THE HEARING.  THERE WAS NO EVIDENCE TO
 ESTABLISH THAT MR.  MACK HAD ANY UNION ANIMUS.  IT IS UNDISPUTED THAT,
 PRIOR TO SEPTEMBER 3, MR. EVANS WAS HAVING SOME DIFFICULTIES IN WORK
 PERFORMANCE.  SEE FINDING 7, ABOVE.  BASED ON A CONSIDERATION OF THESE
 FACTS, I CREDIT THE TESTIMONY OF MR. MACK THAT HE COMPLETED THE CRITIQUE
 ON SEPTEMBER 3. /7/
 
    16.  ON SEPTEMBER 4, AT THE TIME MS. BRANT DELIVERED THE GRIEVANCE TO
 MR. MACK, OR SHORTLY THEREAFTER, THE STANDARD OIL AUDIT WAS BEING
 DISCUSSED BY MS. WOODS AND MR. MACK.  MR. MACK TOLD MS. WOODS THAT HE
 HIMSELF, HAD REVIEWED THE WORKPAPERS ON THE AUDIT, CONFIRMED THE ERRORS
 SHE HAD SPOTTED, FOUND ADDITIONAL ONES, AND PLANNED TO GIVE HER A
 MEMORANDUM ON THE MATTER.  THEN MR. MACK TOLD MS. WOODS THAT SHE WAS TO
 GO OVER THE AUDIT WITH MR. EVANS, AND RESUBMIT A CORRECTED AUDIT.
 DURING THIS CONVERSATION, MR. MACK WAS HOLDING IN HIS HAND A SEALED
 WHITE ENVELOPE.  AFTER MS. MACK TOLD HER WHAT HE WAS GOING TO DO IN
 REGARD TO THE STANDARD OIL AUDIT, MS. WOODS ASKED WHEN THEY WOULD MEET
 TO DISCUSS THE AUDIT WITH MR. EVANS.  MR. MACK REPLIED THAT HE WAS
 PUTTING HIS CRITIQUE IN WRITING, THAT HE HAD SOME OTHER THINGS TO
 DISCUSS WITH MR.  EVANS, AND GESTURED TO THE WHITE ENVELOPE IN HIS HAND.
  MS. WOODS ASKED IF A GRIEVANCE WAS IN THE ENVELOPE.  MR. MACK TOLD HER
 THAT IT WAS, BUT THAT IT DID NOT CONCERN HER OR THE STANDARD OIL AUDIT.
 MS. WOODS THOUGHT THAT MR. MACK SEEMED UPSET.
 
    17.  ON SEPTEMBER 8, MR. EVANS RECEIVED FROM HIS TEAM LEADER, MS.
 WOODS, AN UNFAVORABLE, WRITTEN CRITIQUE OF THE DESK AUDIT PERFORMED BY
 MR. EVANS ON THE STANDARD OIL MATTER.  THE CRITIQUE IS IN THE FORM OF A
 MEMORANDUM FROM MR. MACK TO MS. WOODS.  IT IS DATED SEPTEMBER 5.  IT
 ITEMIZES 18 DEFICIENCIES IN THE DESK AUDIT, AND REFERENCES THE PAGE
 NUMBERS OF MR.  EVANS' WORKPAPERS WHERE THE DEFICIENCIES ARE LOCATED.
 THE MEMORANDUM STATES THAT THE WORKPAPERS ARE BEING RETURNED FOR
 REWORKING.  THE MEMORANDUM CONCLUDES THAT THE MISTAKES MADE BY MR.
 EVANS WERE UNNECESSARY AND WASTEFUL, AND THAT HIS PERFORMANCE ON THIS
 AUDIT WAS NOT ACCEPTABLE.
 
    18.  SOMETIME BETWEEN JUNE 1 AND AUGUST 1, MR. MACK HAD WRITTEN UP
 ANOTHER DETAILED CRITIQUE OF MR. EVAN'S WORK ON A BANK CASE.  THE
 MEMORANDUM WAS GIVEN TO MS. WOODS WITH VERBAL DIRECTIONS TO HAVE MR.
 EVANS REDO THE WORK, AND ADJUST IT TO THE COMMENTS MR. MACK HAD WRITTEN.
  SEE R 12.  APPARENTLY THE WRITTEN CRITIQUE WAS NOT PASSED ALONG TO MR.
 EVANS, AS HE TESTIFIED THAT THE SEPTEMBER WRITTEN CRITIQUE WAS THE FIRST
 SUCH CRITIQUE HE HAD RECEIVED.
 
    19.  SINCE OCTOBER 1979, WRITTEN CRITIQUES HAVE BEEN GIVEN, ON
 OCCASION, TO EOSS.  SIX WERE IDENTIFIED AS HAVING RECEIVED THEM.  ONLY
 TWO OF THE SIX, YOULA BRANT AND ROBERT EVANS, WERE IDENTIFIED AS HAVING
 ANY UNION AFFILIATION.  MS. BRANT RECEIVED HERS IN JULY AND, TO HER
 KNOWLEDGE, IT WAS THE FIRST ONE RECEIVED BY ON EOS.
 
    20.  WRITTEN WORK CRITIQUES ARE NORMALLY KEPT IN SUPERVISORS' WORKING
 FILES, WHICH ARE ROUTINELY PURGED.  THE OCTOBER 11, 1979, CRITIQUE OF
 ONE WAS AVAILABLE, AS EVIDENCE AT THE HEARING, ONLY BECAUSE THE
 SUPERVISOR, WHO HAD WRITTEN IT, HAD RETIRED IN AUGUST 1979, AND PASSED
 ALONG ALL OF HIS FILE, INTACT.  THE OFFICIAL PERSONNEL FILE OF AN
 EMPLOYEE DOES NOT CONTAIN COPIES OF THESE CRITIQUES.
 
                        DISCUSSION AND CONCLUSIONS
 
    THE GENERAL COUNSEL PERSUASIVELY ARGUES THAT AN EMPLOYEE WHO FILES A
 GRIEVANCE IS ENGAGING IN AN ACTIVITY WHICH IS A PROTECTED RIGHT, UNDER
 THE STATUTE.
 
    AS SHOWN BY THE FINDINGS MADE ABOVE, HOWEVER, THE GENERAL COUNSEL HAS
 FAILED TO DEMONSTRATE THE VIOLATION OF THE STATUTE, AS ALLEGED.  THE
 EXERCISE BY MR. EVANS OF THE PROTECTED RIGHT TO FILE A GRIEVANCE WAS NOT
 MADE KNOWN TO RESPONDENT'S AGENT, MR. MACK, UNTIL SEPTEMBER 4.  THE
 UNFAVORABLE CRITIQUE, WHICH THE GENERAL COUNSEL ALLEGES TO BE THE
 VIOLATIVE ACT, WAS COMPLETED BY MR. MACK ON SEPTEMBER 3.  THE FACT THAT
 THE CRITIQUE IS DATED SEPTEMBER 5 IS DUE TO THE FACT THAT THE CRITIQUE
 WAS NOT TYPED AND READY FOR SIGNATURE BEFORE THAT DATE.  THUS, THE FACTS
 ESTABLISHED DO NOT SUPPORT A FINDING OF ANY UNFAIR LABOR PRACTICE;  AND
 THE COMPLAINT SHOULD BE DISMISSED.
 
                        ULTIMATE FINDINGS AND ORDER
 
    RESPONDENT HAS NOT BEEN SHOWN TO HAVE ENGAGED IN ANY UNFAIR LABOR
 PRACTICES, UNDER SECTIONS 7116(A)(1) AND (2), AS ALLEGED IN THE
 COMPLAINT.
 
    ACCORDINGLY, THE COMPLAINT SHOULD BE, AND IT HEREBY IS, DISMISSED.
 
                          ISABELLE R. CAPPELLO
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JULY 24, 1981
    WASHINGTON, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7116(A) PROVIDES, IN PERTINENT PART, THAT IT SHALL BE AN
 UNFAIR LABOR PRACTICE FOR ANY AGENCY:
 
    (1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
 EXERCISE BY THE EMPLOYEE OF
 
    ANY RIGHT UNDER THIS CHAPTER;  (AND)
 
    (2) TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR ORGANIZATION
 BY DISCRIMINATION IN
 
    CONNECTION WITH HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF
 EMPLOYMENT.
 
    /2/ ALL DATES HEREIN REFERENCED ARE IN 1980, UNLESS OTHERWISE
 SPECIFIED.
 
    /3/ THE FOLLOWING ABBREVIATIONS WILL BE USED:  "GC" REFERS TO THE
 EXHIBITS OF THE GENERAL COUNSEL;  "R" REFERS TO THE EXHIBITS OF THE
 RESPONDENT;  "TR" REFERS TO THE TRANSCRIPT;  "GCBR" REFERS TO THE BRIEF
 OF THE GENERAL COUNSEL;  AND "RBR" REFERS TO THE BRIEF OF THE
 RESPONDENT.
 
    /4/ "OJT" IS TAKEN TO MEAN "ON THE JOB TRAINING."
 
    /5/ THERE WAS TESTIMONY THAT THIS MEETING TOOK PLACE ON SEPTEMBER 2.
 SEE TR 27.  HOWEVER, IT WAS ESTABLISHED THAT MR. EVANS WAS ABSENT ON
 LEAVE ON SEPTEMBER 2.
 
    /6/ SEE TR 137.  MS. WOODS RECALLED THE MEETING TAKING PLACE ON
 SEPTEMBER 2.  SEE TR 44.  HOWEVER, IT WAS ESTABLISHED THAT MR. EVANS WAS
 ON ANNUAL LEAVE ON SEPTEMBER 2.
 
    /4/ THE GENERAL COUNSEL FINDS SIGNIFICANT THE FACT THAT MR. MACK
 TESTIFIED THAT ON SEPTEMBER 4 HE TOLD MS. WOODS THAT HE WAS "GOING" TO
 REDUCE HIS CRITIQUE "TO A MEMO." SEE TR 44, 45 AND GCBR 10.  I FIND THAT
 MR. MACK WAS REFERRING TO THE TYPING UP OF HIS HANDWRITTEN CRITIQ