09:0073(11)CA - Office of Program Operations, Field Operations, SSA, San Francisco Region and AFGE, Council of SS District Office Locals, San Francisco Region -- 1982 FLRAdec CA



[ v09 p73 ]
09:0073(11)CA
The decision of the Authority follows:


 9 FLRA No. 11
 
 OFFICE OF PROGRAM OPERATIONS,
 FIELD OPERATIONS,
 SOCIAL SECURITY ADMINISTRATION,
 SAN FRANCISCO REGION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, COUNCIL OF
 SOCIAL SECURITY DISTRICT OFFICE LOCALS,
 SAN FRANCISCO REGION
 Charging Party
 
                                            Case Nos. 8-CA-379
                                                      8-CA-380
                                                      8-CA-401
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
 THE UNFAIR LABOR PRACTICES ALLEGED IN THE CONSOLIDATED COMPLAINT, AND
 RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
 AFFIRMATIVE ACTION.  THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE
 JUDGE'S DECISION, AND BOTH THE GENERAL COUNSEL AND THE CHARGING PARTY
 FILED BRIEFS IN RESPONSE THERETO.  /1/
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 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 IN THE SUBJECT CASES, THE
 AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS AS MODIFIED BELOW.
 
    IN CASE NO. 8-CA-379, THE JUDGE FOUND THAT THE RESPONDENT VIOLATED
 SECTION 7116(A)(1) AND (2) OF THE STATUTE BY TAKING EMPLOYEE FLOYD
 BANKS' UNION ACTIVITIES INTO CONSIDERATION AND THEREBY DISCRIMINATING
 AGAINST HIM DURING THE PROCESS OF SELECTING CANDIDATES FOR PROMOTION TO
 THE MANAGERIAL POSITION OF TECHNICAL ASSISTANT.  IN SO CONCLUDING, THE
 JUDGE STATED THAT SUCH A VIOLATION MUST BE FOUND ONLY A PART IN
 MANAGEMENT'S DECISION NOT TO SELECT AN EMPLOYEE FOR PROMOTION.  THE
 JUDGE FURTHER FOUND THAT CERTAIN STATEMENTS BY BANKS' SUPERVISOR WHICH
 REFERRED TO THE EMPLOYEE'S UNION ACTIVITIES AS A "PROBLEM" DURING A
 CONVERSATION BETWEEN THEM CONCERNING BANKS' QUALIFICATIONS FOR THE
 PROMOTION CONSTITUTED AN INDEPENDENT VIOLATION OF SECTION 7116(A)(1) OF
 THE STATUTE.
 
    IN CASE NO. 8-CA-380, THE JUDGE FOUND THAT THE RESPONDENT VIOLATED
 SECTION 7116(A)(1) AND (5) OF THE STATUTE BY UNILATERALLY CHANGING THE
 ESTABLISHED PAST PRACTICE AND PROCEDURE FOLLOWED BY EMPLOYEES TO SECURE
 ANNUAL LEAVE AROUND HOLIDAY TIMES WHILE THE PARTIES WERE ENGAGED IN
 NEGOTIATIONS CONCERNING CHANGES IN LEAVE POLICY;  AND IN CASE NO.
 8-CA-401 THE JUDGE ADDITIONALLY FOUND THAT NEGOTIATIONS CONCERNING
 CHANGES IN LEAVE POLICY AND UNILATERALLY IMPLEMENTING TWO NEW LEAVE
 POLICIES.
 
    THE EXCEPTIONS FILED BY THE RESPONDENT DID NOT TAKE ISSUE WITH THE
 FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE JUDGE REGARDING THE
 SECTION 7116(A)(1) AND (5) VIOLATIONS IN CASE NOS. 8-CA-380 AND
 8-CA-401, AND THE AUTHORITY HEREBY ADOPTS THOSE FINDINGS, CONCLUSIONS
 AND RECOMMENDATIONS SINCE THEY ARE FULLY SUPPORTED BY THE RECORD
 EVIDENCE.  AS TO THE JUDGE'S SECTION 7116(A)(1) FINDINGS IN CASE NO.
 8-CA-379, THE RECORD EVIDENCE FULLY SUPPORTS THE JUDGE'S FINDINGS AND
 CONCLUSIONS WHICH ARE HEREBY ADOPTED.  HOWEVER, THE AUTHORITY DOES NOT
 AGREE WITH THE JUDGE'S FURTHER CONCLUSION IN CASE NO. 8-CA-379 THAT THE
 RESPONDENT DISCRIMINATED AGAINST EMPLOYEE BANKS, IN VIOLATION OF SECTION
 7116(A)(1) AND (2), BY TAKING BANKS' UNION ACTIVITIES INTO CONSIDERATION
 DURING THE PROCESS OF SELECTING APPLICANTS FOR TECHNICAL ASSISTANT
 POSITIONS.
 
    IN REACHING HIS CONCLUSION IN THIS LATTER REGARD, THE JUDGE APPLIED
 THE TEST ESTABLISHED UNDER EXECUTIVE ORDER 11491, AS AMENDED, THAT A
 VIOLATION OF PROVISIONS SIMILAR TO SECTION 7116(A)(1) AND (2) OF THE
 STATUTE MUST BE FOUND IF THE EVIDENCE DISCLOSES THAT MANAGEMENT'S
 FAILURE TO PROMOTE WAS BASED IN WHOLE OR IN PART ON UNION ACTIVITIES.
 AFTER THE JUDGE ISSUED HIS DECISION IN THE SUBJECT CASE, HOWEVER, THE
 AUTHORITY ISSUED ITS DECISION IN INTERNAL REVENUE SERVICE, WASHINGTON,
 D.C., 6 FLRA NO. 23(1981), IN WHICH A DIFFERENT TEST UNDER THE STATUTE
 WAS ENUNCIATED FOR DETERMINING WHETHER A VIOLATION HAS BEEN COMMITTED IN
 SUCH CIRCUMSTANCES.  THUS, THE AUTHORITY STATED THAT, UNDER THE STATUTE,
 " . . . THE BURDEN IS ON THE GENERAL COUNSEL TO MAKE A PRIMA FACIE
 SHOWING THAT THE EMPLOYEE HAD ENGAGED IN PROTECTED ACTIVITY AND THAT
 THIS CONDUCT WAS A MOTIVATING FACTOR IN AGENCY MANAGEMENT'S DECISION NOT
 TO PROMOTE.  ONCE THIS IS ESTABLISHED, THE AGENCY MUST SHOW BY A
 PREPONDERANCE OF THE EVIDENCE THAT IT WOULD HAVE REACHED THE SAME
 DECISION AS TO THE PROMOTION EVEN IN THE ABSENCE OF THE PROTECTED
 CONDUCT." IN THE INSTANT CASE, WHILE THE JUDGE FOUND THAT BANKS' UNION
 ACTIVITIES WERE A CONSIDERATION IN THE RESPONDENT'S DECISION NOT TO
 PROMOTE HIM, HE FURTHER FOUND (AND THE RECORD SUPPORTS SUCH FINDING)
 THAT " . . .  RESPONDENT MET ITS BURDEN BY SHOWING THAT OTHER REASONS
 EXISTED FOR BANKS' NON-SELECTION THAN UNION CONSIDERATIONS." THUS, AS
 FOUND BY THE JUDGE, BANKS DID NOT RECEIVE A TOP RATING IN ANY CATEGORY
 CONSIDERED BY THE RESPONDENT IN MAKING THE SELECTIONS FOR PROMOTION
 (INCLUDING SUPERVISORY RECOMMENDATIONS, PERFORMANCE APPRAISALS, LEAVE
 RECORDS AND TRAINING ABILITY), AND THERE WAS NO EVIDENCE IN THE RECORD
 TO SUGGEST THAT HE WAS MORE QUALIFIED THAN ANY OF THE EMPLOYEES ACTUALLY
 SELECTED.  MOREOVER, AS THE JUDGE FOUND, "BANKS ACKNOWLEDGED AT LEAST
 TWO INCIDENTS IN WHICH HE HAD BECOME INVOLVED WHICH MIGHT WELL HAVE, IF
 TAKEN INTO CONSIDERATION, PREVENTED HIS SELECTION." INASMUCH AS BANKS
 DISCUSSED BOTH INCIDENTS WITH THE SELECTING OFFICIAL AT A COUNSELLING
 SESSION ON THE DAY BEFORE THE PROMOTION SELECTIONS WERE MADE (THE FIRST
 INVOLVING HIS HEATED CONFRONTATION WITH ONE OF THE RESPONDENT'S
 SUPERVISORS ON A PERSONAL MATTER IN THE PRESENCE OF OTHER EMPLOYEES AND
 THE OTHER CONCERNING HIS FAILURE TO SIGN A FORM INDICATING HIS
 ACTIVITIES ON BEHALF OF AN EMPLOYEE SOCIAL ORGANIZATION AS REQUIRED BY
 ESTABLISHED POLICY), THE AUTHORITY FINDS THAT THESE INCIDENTS WERE
 CONSIDERED DURING THE SELECTION PROCESS.  ACCORDINGLY, THE AUTHORITY
 CONCLUDES THAT THE RESPONDENT SATISFIED THE SECOND PART OF THE TEST SET
 FORTH IN THE INTERNAL REVENUE SERVICE CASE BY ESTABLISHING BY A
 PREPONDERANCE OF THE EVIDENCE THAT IT WOULD HAVE REACHED THE SAME
 DECISION AS TO THE PROMOTION EVEN IN THE ABSENCE OF THE PROTECTED
 CONDUCT.
 
    UNDER THESE CIRCUMSTANCES, THE AUTHORITY CONCLUDES THAT THE PORTION
 OF THE COMPLAINT IN CASE NO. 8-CA-379 ALLEGING AN UNLAWFUL REFUSAL TO
 SELECT EMPLOYEE BANKS FOR THE PROMOTION TO TECHNICAL ASSISTANT SHOULD BE
 DISMISSED, AND SHALL MODIFY THE ORDER ACCORDINGLY.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
 OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS, SOCIAL SECURITY
 ADMINISTRATION, SAN FRANCISCO REGION, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERFERING WITH, RESTRAINING, OR COERCING FLOYD BANKS, OR ANY
 OTHER EMPLOYEE, IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE, BY
 REFERRING DURING THE COURSE OF A SELECTION PROCESS TO HIS MEMBERSHIP OR
 ACTIVITIES ON BEHALF OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN
 FRANCISCO REGION, OR ANY OTHER LABOR ORGANIZATION.
 
    (B) CHANGING THE LEAVE POLICY OF EMPLOYEES AT THE LOS ANGELES,
 CALIFORNIA TELESERVICE CENTER REPRESENTED EXCLUSIVELY BY AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL SECURITY
 DISTRICT LOCALS, SAN FRANCISCO REGION, WITHOUT AFFORDING SUCH
 REPRESENTATIVE THE OPPORTUNITY TO BARGAIN IN GOOD FAITH, TO THE EXTENT
 CONSONANT WITH LAW AND REGULATIONS.
 
    (C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSE AND POLICIES OF THE STATUTE:
 
    (A) RESCIND THE POLICY MEMORANDA OF MARCH 13, 1980 PERTAINING TO
 CHANGES IN LEAVE POLICY AND RESTORE THE LEAVE POLICY IN EFFECT PRIOR TO
 DECEMBER 1979 IN THE LOS ANGELES TELESERVICE CENTER.
 
    (B) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION,
 OR ANY INTENDED CHANGES IN LEAVE POLICY FOR LOS ANGELES TELESERVICE
 CENTER EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH,
 TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, WITH THE EMPLOYEES'
 EXCLUSIVE REPRESENTATIVE CONCERNING SUCH CHANGES.
 
    (C) POST AT ITS FACILITIES AT THE LOS ANGELES TELESERVICE CENTER, LOS
 ANGELES, CALIFORNIA, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE
 FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF
 SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR, OFFICE OF PROGRAM
 OPERATIONS, FIELD OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN
 FRANCISCO REGION, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
 BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE
 THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION VIII, FEDERAL LABOR
 RELATIONS AUTHORITY IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    IT IS HEREBY ORDERED THAT THE PORTION OF THE CONSOLIDATED COMPLAINT
 ALLEGING A VIOLATION OF SECTION 7116(A)(2) BE, AND IT HEREBY IS,
 DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 11, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
                                 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEE FLOYD BANKS,
 OR ANY OTHER EMPLOYEE, IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE
 BY REFERRING, DURING THE SELECTION PROCESS, TO HIS MEMBERSHIP OR
 ACTIVITIES ON BEHALF OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN
 FRANCISCO REGION, OR ANY OTHER LABOR ORGANIZATION.
 
    WE WILL NOT CHANGE THE LEAVE POLICY OF EMPLOYEES REPRESENTED
 EXCLUSIVELY BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION,
 THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, WITHOUT AFFORDING SUCH
 REPRESENTATIVE THE OPPORTUNITY TO BARGAIN IN GOOD FAITH, TO THE EXTENT
 CONSONANT WITH LAW AND REGULATIONS.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
 COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
 
    WE WILL NOTIFY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION,
 OF ANY INTENDED CHANGE IN LEAVE POLICY FOR LOS ANGELES TELESERVICE
 CENTER EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH,
 TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:  (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, 350 SOUTH FIGUEROA
 STREET, 10TH FLOOR, LOS ANGELES, CALIFORNIA 90071, AND WHOSE TELEPHONE
 NUMBER IS (213) 688-3805.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    SILVIA M. DIAZ
    GERALD M. COLE, ESQS.
                   FOR THE GENERAL COUNSEL
 
    DANIEL H. GREEN
    JOHN OLEXY, ESQS.
                  FOR THE RESPONDENT
 
    JEFFEREY H. DASTEEL
                  FOR THE CHARGING PARTY
 
    BEFORE:  ELI NASH, JR.
                  ADMINISTRATIVE LAW JUDGE
 
                            CASE NOS. 8-CA-379
                                 8-CA-380
                                 8-CA-401
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THESE CONSOLIDATED CASES AROSE PURSUANT TO THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. SECTION
 7101, ET SEQ., (HEREINAFTER CALLED THE "STATUTE") AS A RESULT OF A
 CONSOLIDATED UNFAIR LABOR PRACTICE COMPLAINT FILED ON MAY 20, 1980.
 
    THE CONSOLIDATED COMPLAINTS ALLEGED, IN SUBSTANCE, THAT THE OFFICE OF
 PROGRAM OPERATIONS FIELD OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN
 FRANCISCO REGION, (HEREINAFTER REFERRED TO AS "RESPONDENT") VIOLATED 5
 U.S.C. SECTION 7116(A), (1), (2) AND (5) THROUGH UNLAWFUL STATEMENTS
 MADE TO A UNIT EMPLOYEE REGARDING HIS UNION ACTIVITIES IN CONNECTION
 WITH HIS SEEKING A PROMOTION AND UNLAWFUL DISCRIMINATION AGAINST THE
 SAME EMPLOYEE BY IMPROPERLY CONSIDERING HIS UNION ACTIVITIES IN
 CONNECTION WITH A PROMOTION;  BY REFUSING TO BARGAIN THROUGH
 UNILATERALLY CHANGING PROCEDURES BY WHICH EMPLOYEES AT THE LOS ANGELES,
 CALIFORNIA TELESERVICE, CENTER (HEREINAFTER CALLED THE "CENTER") SECURED
 LEAVE AROUND HOLIDAY TIME, WITHOUT GIVEN NOTICE TO OR ALLOWING AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL SECURITY
 DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION, (HEREINAFTER CALLED THE
 "UNION" OR THE "CHARGING PARTY") AN OPPORTUNITY TO NEGOTIATE CONCERNING
 THE CHANGES IN POLICY;  AND, BY UNILATERALLY ADOPTING AND IMPLEMENTING
 TWO LEAVE POLICIES AT THE CENTER WITHOUT ALLOWING THE UNION AN
 OPPORTUNITY TO BARGAIN.  /2/
 
    RESPONDENT'S ANSWER DENIED THE COMMISSION OF ANY UNFAIR LABOR
 PRACTICES.
 
    A HEARING WAS HELD BEFORE THE UNDERSIGNED ON AUGUST 21, 1980 IN LOS
 ANGELES, CALIFORNIA.  ALL PARTIES WERE REPRESENTED BY COUNSEL AND
 AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND
 EXAMINE AND CROSS-EXAMINE WITNESSES.  ALL PARTIES FILED TIMELY BRIEFS
 WHICH HAVE BEEN DULY CONSIDERED.  /3/
 
    BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
 ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
 FACT, CONCLUSIONS OF LAW AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    RESPONDENT AND THE UNION, HAVE AT ALL TIMES MATERIAL HEREIN, BEEN
 PARTIES TO COLLECTIVE-BARGAINING AGREEMENT COVERING THE EMPLOYEES
 INVOLVED IN THIS MATTER.
 
    A.  CASE NO. 8-CA-379
 
    AROUND DECEMBER 1979, FLOYD BANKS, A TELEPHONE SERVICE REPRESENTATIVE
 AT THE CENTER FOR ABOUT FOUR AND A HALF YEARS, APPLIED FOR AND WAS
 PLACED ON THE BEST QUALIFIED LIST FOR A TECHNICAL ASSISTANT POSITION AT
 THE CENTER.  DURING THE SAME PERIOD BANKS APPLIES FOR AND WAS ALSO
 PLACED ON THE BEST QUALIFIED LISTS FOR SEVERAL CLAIMS REPRESENTATIVE
 POSITIONS WITH THE AGENCY IN THE SOUTHERN CALIFORNIA AREA.  BANKS WAS
 ONE OF ABOUT FIVE EMPLOYEES WHO MADE THE BEST QUALIFIED LIST FOR THE
 TECHNICAL ASSISTANT POSITION AT THE CENTER.  /4/
 
    AROUND FEBRUARY 5, 1980, BANKS ENGAGED IN A RATHER LENGTHY
 CONVERSATION WITH THE CENTER'S MANAGER JAMES BRENNAN CONCERNING THE TWO
 PROMOTIONAL ANNOUNCEMENTS.  BRENNAN AS MANAGER OF THE CENTER WAS TO BE
 THE SELECTING OFFICIAL FOR ABOUT THREE TECHNICAL ASSISTANT POSITIONS.
 ACCORDING TO BANKS, BRENNAN OPENED THE CONVERSATION BY STATING THAT
 WHILE HE HAD NOT HAD AN OPPORTUNITY TO REVIEW BANKS' WORK RECORD, HE
 WANTED TO TALK ABOUT SOME OF THE BEST QUALIFIED LISTS THAT BANKS HAD
 BEEN PLACED ON.  AT THE OUTSET, BRENNAN DISCUSSED THE CLAIMS
 REPRESENTATIVE POSITIONS, NOTING THAT HE DID NOT FEEL THAT HE COULD
 RECOMMEND BANKS FOR THAT POSITION TO OTHER MANAGERS, MAINLY BECAUSE HE
 HAD SOME DOUBTS ABOUT BANKS' "APPLICATION OF TIME".  BANKS INQUIRED AS
 TO WHAT HE MEANT, TO WHICH BRENNAN RESPONDED THAT HE HAD OBSERVED BANKS
 WALKING AROUND THE OFFICE OR SITTING AT OTHER EMPLOYEES DESKS DURING
 WORKING HOURS.  BANKS REPLIED THAT HIS WALKING AROUND OR TALKING TO
 OTHER EMPLOYEES SHOULD NOT BE VIEWED AS HIS NOT WORKING.  BANKS
 ATTEMPTED TO EXPLAIN THAT SOMETIMES IT BECAME NECESSARY FOR HIM TO GO TO
 THE COMPUTER OR TO THE NON-RECEIPT UNIT FOR INFORMATION.  AT OTHER TIMES
 HE HAD BEEN STOPPED BY OTHER EMPLOYEES EITHER TO ANSWER TECHNICAL
 QUESTIONS REGARDING WORK, AS HE HAD BEEN AN INSTRUCTOR FOR NUMEROUS
 TRAINING COURSES GIVEN AT THE CENTER, OR TO ANSWER QUESTIONS RELATED TO
 UNION BUSINESS, AS HE WAS THE LOCAL REPRESENTATIVE FOR THE CHARGING
 PARTY.  UPON HEARING THIS, BRENNAN POINTED OUT THAT BANKS SHOULD FILL
 OUT FORM 75'S (OFFICIAL TIME FORMS) FOR UNION BUSINESS CONDUCTED DURING
 WORKING HOURS.  BANKS RESPONDED THAT IF HE DID THIS EVERY TIME AN
 EMPLOYEE ASKED HIM A QUESTION CONCERNING LABOR RELATIONS, HE WOULD END
 UP FILLING OUT 50 TO 75 SUCH FORM A DAY.  /5/
 
    ACCORDING TO BANKS, HE WAS NOT SATISFIED WITH BRENNAN'S STATEMENT
 CONCERNING "APPLICATION OF TIME", AND HE ASKED FOR SOME CLARIFICATION
 FROM BRENNAN.  BRENNAN RESPONDED BY REFERRING TO AN INCIDENT IN WHICH
 BANKS AND ALLEGEDLY TAKEN TOO LONG IN DEALING WITH A MATTER INVOLVING A
 CENTER EMPLOYEE, THELMA WALSH WHO HAD FILED AN INFORMAL GRIEVANCE WHICH
 HAD NOT BEEN RESOLVED.  BRENNAN THEN ASKED BANKS IN HIS CAPACITY AS
 UNION REPRESENTATIVE TO RESOLVE THE MATTER.  BANKS NOTED THAT THIS
 INCIDENT WAS UNION BUSINESS AND THAT BRENNAN'S CONSIDERATION OF THIS
 MATTER WAS IMPROPER.  BRENNAN DID NOT RESPOND, BUT REMAINED SILENT.
 
    CONCERNING THE TECHNICAL ASSISTANT POSITION, BANKS TESTIFIED THAT
 BRENNAN STATED AS FOLLOWS:
 
    Q AND WHAT DO YOU RECALL WAS MENTIONED ABOUT THAT ("TECHNICAL
 ASSISTANT THING")?
 
    A OKAY.  HE (BRENNAN) ASKED ME WHY DID I APPLY FOR THE TA POSITION
 AND I RESPONDED
 
    SOMETHING TO THE EFFECT THAT IT WAS MORE MONEY AND HE KIND OF LAUGHED
 AT THAT AND SAID HE WAS
 
    SERIOUS AND WHY DID I APPLY FOR THE TECHNICAL ASSISTANT THAT THAT'S A
 MANAGEMENT POSITION.  I
 
    SAID SOMETHING LIKE, SO, AND HE SAID BUT YOU'RE THE UNION REPT AND I
 SAID THAT THAT WAS NO
 
    PROBLEM.  I TOLD HIM THAT IF I GOT IT I WOULD RESIGN AS UNION REPT
 AND THEN HE SAID SOMETHING
 
    LIKE, WELL, WITH ALL THE TROUBLE THAT YOU'VE GIVEN ME IN THE LAST
 YEAR DO YOU REALLY EXPECT ME
 
    TO PICK YOU FOR THAT POSITION?  I STOPPED HIM ONCE AGAIN AND SAID
 "WHAT TROUBLE ARE YOU
 
    TALKING ABOUT BECAUSE THE ONLY TROUBLE I'VE EVER GIVEN YOU HAS BEEN
 UNION AND THAT'S NOT
 
    SUPPOSED TO BE CONSIDERED I'M JUST DOING MY JOB LIKE YOU'RE DOING
 YOURS".
 
    THE CONVERSATION ENDED WITH DISCUSSION OF THE CLAIMS REPRESENTATIVE
 POSITION WITH BANKS ASKING BRENNAN WHAT BRENNAN HAD SAID TO ONE PARTY
 WHO HAD CALLED FROM RESPONDENT'S TORRANCE OFFICE CONCERNING BANKS
 EMPLOYABILITY.  BANKS WANTED TO KNOW WHAT BRENNAN'S RECOMMENDATION HAD
 BEEN.
 
    BRENNAN TESTIFIED THAT HE VIEWED THE CONVERSATION WITH BANKS AS A
 COUNSELLING SESSION ON PROMOTIONAL OPPORTUNITY.  ACCORDING TO BRENNAN,
 HIS INTENTION WAS TO GIVE BANKS A PICTURE OF WHAT HE AND SOME OTHERS HAD
 OF BANKS.  HOWEVER, INSTEAD OF COMING ACROSS IN A POSITIVE MANNER WITH
 CONSTRUCTIVE CRITICISM, BRENNAN INDICATED THAT BANKS TOOK ISSUE WITH HIS
 REMARKS AND REQUIRED HIM TO JUSTIFY THE CRITICISM.  BRENNAN FURTHER
 TESTIFIED THAT HE DID NOT DISCUSS THE PARTICULARS OF THE TECHNICAL
 ASSISTANT POSITION WITH BANKS BECAUSE HE HAD NOT MADE THE SELECTION AT
 THAT TIME AND TO DO SO WOULD BE UNFAIR TO THE OTHER EMPLOYEES ON THE
 BEST QUALIFIED LIST.  BRENNAN INDICATED TO BANKS THAT HE HAD SOUGHT
 RECOMMENDATIONS FROM OTHER SUPERVISORS IN THE OFFICE FOR THE POSITION
 AND WHERE BANKS FELL IN THOSE INFORMAL RATINGS.  BRENNAN FURTHER
 TESTIFIED THAT HIS REMARK TO BANKS WAS NOT, "WITH ALL THE TROUBLE YOU'VE
 GIVEN ME IN THE PAST YEAR, DO YOU REALLY THINK I'D PICK YOU?", BUT WAS
 PROBABLY, "FLOYD, WHY WOULD I PROMOTE YOU WITH THE PROBLEMS THAT YOU'VE
 CAUSED ME?" BRENNAN TESTIFIED THAT HIS REMARK WAS NOT A SARCASTIC REMARK
 CONCERNING BANKS' PROMOTION TO THE TECHNICAL ASSISTANT POSITION, BUT WAS
 A RHETORICAL QUESTION DESIGNED TO SOLICIT BANKS' INPUT DURING THE
 COUNSELLING SESSION.  BRENNAN STATES THAT HE WAS ONLY ATTEMPTING TO
 ELICIT WHAT QUALITIES BANKS FELT HE HAD WHICH WOULD WARRANT
 RECOMMENDATION.  BRENNAN'S FURTHER TESTIMONY CONCERNING THE
 CONVERSATION
 IS CONSISTENT WITH THAT OF BANKS.
 
    BRENNAN STATES THAT HE MADE THE SELECTIONS FOR THE TECHNICAL
 ASSISTANT POSITIONS BASED UPON SUPERVISORY RECOMMENDATIONS, PERSONNEL
 QUALIFICATIONS, APPRAISALS, LEAVE RECORDS, TECHNICAL ABILITIES AND HIS
 OWN PERSONNEL JUDGEMENT OF THE APPLICANTS.  HE ALSO STATED THAT THE
 QUALITIES HE LOOKED FOR IN THE SELECTION OF AN INDIVIDUAL FOR THE
 TECHNICAL ASSISTANT POSITIONS WERE THE ABILITY TO RELATE WELL TO PEOPLE,
 TRAINING EXPERIENCE REFLECTING TECHNICAL SKILL, AND ABILITY TO WORK WELL
 WITH LITTLE SUPERVISION.  BRENNAN ALSO TESTIFIED THAT HE DID NOT
 CONSIDER BANK'S UNION ACTIVITIES WHEN HE MADE THE SELECTIONS.  FINALLY,
 HE INDICATED THAT HE KNEW THAT HE WAS NOT PERMITTED TO TAKE UNION
 ACTIVITIES INTO CONSIDERATION IN SELECTION DECISIONS.  BRENNAN CONTENDED
 THAT HIS STRONGEST RELIANCE IN THE SELECTION PROCESS WAS UPON
 SUPERVISORY RECOMMENDATIONS.
 
    IN THE EARLY SPRING OF 1979, ABOUT A YEAR BEFORE THE FEBRUARY 5, 1979
 CONVERSATION, WITH BRENNAN, BANKS WAS ELECTED AS A LOCAL UNION
 REPRESENTATIVE.  IN HIS CAPACITY AS A UNION REPRESENTATIVE, HE PRESENTED
 GRIEVANCES OF BARGAINING UNIT EMPLOYEES TO MANAGEMENT, HANDLED VARIOUS
 EMPLOYEE INFORMAL COMPLAINTS, SERVED AS BACK-UP FOR ANOTHER UNION
 REPRESENTATIVE, IN WHICH CAPACITY HE RECEIVED NOTICE OF CHANGES, AND AS
 PREVIOUSLY NOTED, SPENT A SIGNIFICANT AMOUNT OF TIME ANSWERING
 EMPLOYEES' QUESTIONS RELATING TO LABOR-MANAGEMENT ISSUES.  SUBSEQUENTLY,
 IN JUNE 1980, BANKS BECAME THE CENTERS CHIEF STEWARD.
 
    BANKS EMPLOYMENT INVOLVED HANDLING TELEPHONE CALLS FROM THE INQUIRING
 PUBLIC CONCERNING MATTERS OF SOCIAL SECURITY.  HE ALSO SERVED AS A STAFF
 TRAINING INSTRUCTOR AT THE CENTER, AS WELL AS WITH THE LOS ANGELES
 CENTRAL NETWORK PROGRAM.  BANKS' WORK PERFORMANCE DISCLOSED A PATTERN
 OF
 HAVING "EXCEED WORK REQUIREMENTS, BUT NOT TO AN EXCEPTIONAL DEGREE" IN
 MOST AREAS, TO HAVING "EXCEEDED REQUIREMENTS TO AN EXCEPTIONAL DEGREE"
 IN A FEW AREAS SUCH AS IN ADAPTABILITY AND FLEXIBILITY AND ORAL
 COMMUNICATIONS.  REGARDING HIS PERFORMANCE AS A TRAINING INSTRUCTOR,
 BANKS RATINGS WERE FAVORABLE.  JANE STUART, ONE OF HIS FORMER
 SUPERVISORS, TESTIFIED THAT SHE RATED BANKS "SATISFACTORY TO ABOVE
 AVERAGE" AS AN INSTRUCTOR.  ALSO, BANKS RECEIVED COMMENDATIONS FROM
 OTHER REGARDING HIS DEDICATION, CONCERN AND PROFESSIONALISM.
 
    IN 1978, BANKS WAS PRESIDENT OF THE SUNSHINE CLUB, AN OFFICE
 ORGANIZATION WHICH HANDLED SOCIAL FUNCTIONS.  IN THAT POSITION HE
 RECEIVED SOME CRITICISM FROM BRENNAN CONCERNING HIS FAILURE TO SIGN A
 CLERICAL SHEET WHENEVER HE ENGAGED IN SUNSHINE CLUB FUNCTIONS.  BANKS
 APPARENTLY WAS NOT SIGNING THE CLERICAL SHEET REQUIRED TO BE SIGNED BY
 EMPLOYEES WHENEVER THEY WERE OFF THE TELEPHONES.  IN ANY EVENT, HIS
 HANDLING OF THIS RESPONSIBILITY WAS DISCUSSED WITH BRENNAN DURING THE
 FEBRUARY 5 CONVERSATION.
 
    BOTH BANKS AND BRENNAN TESTIFIED TO TWO WORK RELATED PROBLEMS
 DISCUSSED DURING THE FEBRUARY 5 MEETING.  FIRST, THE SUNSHINE CLUB
 PROBLEM MENTIONED ABOVE AND THE SECOND INVOLVED A STAFF MEETING
 CONDUCTED AROUND JUNE 20, 1979.  AT THE JUNE 20, 199 STAFF MEETING,
 BANKS APPARENTLY CONFRONTED ASSISTANT MANAGER LARRY HYERT ABOUT AN ISSUE
 CONCERNING THE USE OF TELEPHONES IN THE OFFICE.  BANKS POINTED OUT THAT
 IT HAD BEEN ABOUT FOUR MONTHS SINCE MANAGEMENT HAD BEEN ASKED TO CLARIFY
 WHICH TELEPHONES WERE TO BE USED BY EMPLOYEES FOR MAKING CALL BACKS.
 BANKS FURTHER NOTED THAT MANAGEMENT TOOK A SATURDAY OF OVERTIME TO WORK
 A DISCIPLINARY ACTION ON AN EMPLOYEE.  HYERT WAS OBVIOUSLY UPSET WITH
 BANKS' COMMENT, AS WERE SOME OF THE EMPLOYEES ATTENDING.  BANKS THEN SAT
 DOWN BUT WITHIN A FEW MINUTES EXITED THE MEETING ROOM.  A GROUP
 COMPLAINT AGAINST BANKS WAS PRESENTED TO BRENNAN AFTER THIS MEETING.
 
    BRENNAN TESTIFIED CONCERNING THE JUNE 20 INCIDENT AS FOLLOWS:
 
    Q DID YOU MENTION TO HIM ANY REMARKS IN REGARD TO HIS UNION
 ACTIVITIES OR THIS PERCEPTION
 
    OF HIS BEHAVIOR BY THE EMPLOYEES?
 
    A I THINK WE DISCUSSED THAT THAT YOU KNOW AS A UNION PERSON IF HE IS
 EVEN IF HE'S NOT
 
    ACTING IT'S VERY HARD FOR HIM TO DIFFERENTIATE TO OTHER EMPLOYEES, IF
 HE'S ACTING ON BEHALF OF
 
    HIMSELF OR HIS UNION ROLE BECAUSE HE HAS AN IMAGE THAT HE HAS TO HOLD
 (SIC) IN THE OFFICE AS
 
    THE UNION REPRESENTATIVE AND I DON'T KNOW-- IN THIS CASE OBVIOUSLY,
 HE WAS ACTING ON HIS OWN
 
    BUT I'M NOT SURE THAT THAT WAS APPARENT TO ALL THE EMPLOYEES IN THE
 OFFICE.
 
    Q DID YOU ADDRESS THAT VERBALLY AND REMARK TO HIM THAT BECAUSE OF THE
 GROUP COMPLAINT
 
    REFERENCE TO THE UNION DEALINGS THERE?
 
    A I THINK I JUST ADDRESSED IT AS SOMETHING OF TRYING TO IMPROVE
 LABOR/MANAGEMENT
 
    RELATIONSHIPS THAT IF HE'S GOING TO ACT THIS WAY THAT IT'S REALLY
 GOING TO BE VERY DIFFICULTY
 
    BECAUSE I'M REALLY NOT GOING TO KNOW WHICH HAT HE'S WEARING.
 
    AROUND FEBRUARY 6, 1980, THE DAY AFTER THE CONVERSATION BETWEEN BANKS
 AND BRENNAN TOOK PLACE, THE SELECTIONS WERE MADE FOR THREE TECHNICAL
 ASSISTANT POSITIONS.  EMPLOYEES BARBARA WITTE, PAULINE GABBARD, AND
 WILLARD FULLERTON, WHO WERE ALL TELESERVICE REPRESENTATIVES AT THE
 CENTER, WERE SELECTED FOR THE TECHNICAL ASSISTANT POSITIONS AT THE
 CENTER.  ALTHOUGH RATED IN THE TOP THREE SLOTS BY SOME SUPERVISORS,
 BANKS WAS NOT SELECTED.  THE RECORD REVEALS THAT BANKS LEAVE RECORD WAS
 SIMILAR TO FULLERTON AND GABBARD AND THERE WAS SOME QUESTION THAT WITTE
 HAD ANY TRAINING EXPERIENCE WHILE BANKS WAS RATED AVERAGE TO ABOVE IN
 THAT AREA.  FURTHER, BRENNAN TESTIFIED THAT BANKS, "DOES A BETTER THAN
 AVERAGE JOB."
 
    B.  CASES NOS. 8-CA-380 AND 8-CA-401
 
    A.  BACKGROUND
 
    SOMETIME IN LATE NOVEMBER 1979, A SURVEY WAS CONDUCTED AT THE CENTER
 BY AREA DIRECTOR MATTHEW WOODS, WHICH REVEALED AN ATMOSPHERE OF LOW
 MORALE AMONG EMPLOYEES, CAUSED, IN PART, BY THE LEAVE POLICY IN
 EXISTENCE AT THAT TIME.  AMONG THE PROBLEMS VOICED BY EMPLOYEES,
 CONCERNING THE EXISTING POLICY, WAS THAT THE SAME EMPLOYEES WERE GETTING
 THE SAME ANNUAL LEAVE EVERY YEAR, THAT EMPLOYEES WERE REQUIRED TO
 ACCUMULATE FORTY HOURS OF ANNUAL LEAVE BEFORE BEING ABLE TO TAKE ANNUAL
 LEAVE, AND THAT THE SUPERVISORS WERE NOT IMPLEMENTING THE TARDINESS
 POLICY UNIFORMLY.
 
    BOTH SIDES ACKNOWLEDGED THE PROBLEMS WITH THE LEAVE POLICY AND
 EXPRESSED A NEED TO SEE THAT POLICY CHANGED.  CONSEQUENTLY, A MEETING
 WAS HELD ON DECEMBER 12, 1979 AT WHICH IT WAS AGREED THAT THAT ASSISTANT
 MANAGER HYERT AND UNION REPRESENTATIVE SUSQUILLA STEWART WOULD WORK
 TOGETHER IN MAKING APPROPRIATE REVISIONS TO THE EXISTING LEAVE POLICY.
 BECAUSE STEWART WOULD BE ON ANNUAL LEAVE FROM DECEMBER 28, 1979 UNTIL
 JANUARY 14, 1980, IT WAS DECIDED THAT HYERT WOULD WORK ON REVISIONS TO
 THE LEAVE POLICY, BUT THAT HE WAS TO REPORT BACK TO THE UNION ON
 WHATEVER HE DID AND GET INPUT FROM STEWART.
 
    PRIOR TO THIS TIME THE LEAVE POLICY AT THE CENTER WAS CONTAINED IN A
 DOCUMENT DATED JANUARY 11, 1978.  THIS DOCUMENT, SIGNED BY BRENNAN,
 CONTAINED NO PROVISION FOR HOLIDAY LEAVE, WHICH SUBSEQUENTLY BECAME THE
 CENTER OF DISPUTE.
 
    B.  CASE NO. 8-CA-830
 
    THE GENERAL COUNSEL PRESENTED WITNESSES REGARDING THE PROCEDURES
 FOLLOWED AND OBSERVED BY CENTER EMPLOYEES PRIOR TO JANUARY 1980 IN
 OBTAINING ANNUAL LEAVE FOR PERIODS OF TIME AROUND HOLIDAYS.  THEIR
 TESTIMONY ESTABLISHED THAT PRIOR TO JANUARY 1980, EMPLOYEES AT THE
 CENTER COULD SUBMIT THE APPROPRIATE SSA-FORM 71 AS EARLY AS JANUARY OF
 THE PARTICULAR YEAR AND REQUEST TO TAKE OFF TIME FOR ANY PERIOD DURING
 THE REMAINDER OF THE YEAR.  THERE WERE NO RESTRICTIONS ON WHEN EMPLOYEES
 COULD MAKE SUCH REQUEST AND THEIR WAS NO DISTINCT HOLIDAY LEAVE POLICY
 PRIOR TO THAT TIME.  THUS, IT APPEARED THAT EMPLOYEE REQUESTS, WHICH
 WERE CONSIDERED AS ANY OTHER ANNUAL LEAVE REQUEST, WOULD BE EITHER
 APPROVED OR DISAPPROVED BY THEIR SUPERVISORS PURSUANT TO THE PERSONNEL
 GUIDE FOR SUPERVISORS MANUAL, AND THEIR REQUESTS FOR VACATION WOULD
 NORMALLY BE GRANTED ON A FIRST-COME, FIRST-SERVE BASIS AS SET OUT IN THE
 JANUARY 11, 1978 MEMORANDUM.
 
    JANE STUART, A SUPERVISOR AT THE FACILITY TESTIFIED THAT MANY
 EMPLOYEES WOULD SUBMIT LEAVE REQUESTS AT THE BEGINNING OF THE YEAR, IN
 JANUARY.  STUART ALSO STATED THAT EMPLOYEES WHO PUT IN LEAVE SLIPS FOR
 ANNUAL LEAVE AROUND HOLIDAYS WOULD HAVE THOSE REQUESTS ROUTINELY
 APPROVED UNLESS THE QUOTA FOR EMPLOYEES TAKING THE SAME PERIOD OF TIME
 OFF HAD BEEN REACHED.  /6/
 
    THE CONTROVERSY IN THIS MATTER WAS BROUGHT TO A HEAD WHEN LEAVE SLIPS
 SUBMITTED IN JANUARY 1980 REQUESTING LEAVE AFTER JULY 1, 1980 WERE
 EITHER RETURNED BY THE INDIVIDUAL'S SUPERVISOR OR HELD IN ABEYANCE BY
 THE SUPERVISOR, WITH NO ACTION BEING TAKEN ON THE REQUEST.
 
    EMPLOYEE MARGOT SCHOOLS STATED THAT HER REQUESTS FOR LEAVE WERE
 SUBMITTED IN THE CUSTOMARY FASHION IN EARLY JANUARY 1980, BUT THAT HER
 SUPERVISOR MARY CLARK, RETURNED THE LEAVE SLIPS FOR "EVERYTHING AFTER
 THE END OF JUNE 1980".  ACCORDING TO SCHOOLS, CLARK TOLD HER THAT,
 "THERE WAS GOING TO BE A CHANGE IN THE LEAVE POLICY AND THAT SHE HAD TO
 GIVE THE SLIPS BACK TO ME AND I WOULD HAVE TO RESUBMIT MY REQUEST FOR
 THE LEAVE THAT I WANTED AFTER JUNE 30TH AFTER THE FIRST SIX MONTHS OF
 THE YEAR." SIMILARLY, BANKS SUBMITTED LEAVE REQUESTS DURING THE FIRST
 WEEK IN JANUARY 1980, BUT HAD THOSE SLIPS FOR PERIODS AROUND HOLIDAYS
 OCCURRING AFTER JULY 4, 1980, RETURNED TO HIM BY HIS SUPERVISOR, JEAN
 KARECKAS.  BANKS WAS TOLD BY KARECKAS THAT, "MANAGEMENT WOULD BE COMING
 OUT WITH A NEW LEAVE POLICY FOR HOLIDAY PERIODS." BOTH SCHOOLS AND BANKS
 WERE TOLD BY THEIR RESPECTIVE SUPERVISORS TO RESUBMIT THEIR REQUESTS IN
 JUNE 1980.
 
    RESPONDENT'S WITNESSES CONFIRMED THAT IN EARLY JANUARY 1980,
 SUPERVISORS EITHER RETURNED LEAVE SLIPS REQUESTING ANNUAL LEAVE AFTER
 JUNE 1980 TO EMPLOYEES OR HELD THE LEAVE REQUESTS IN ABEYANCE WITHOUT
 ANY ACTION.  ACCORDING TO BRENNAN, THE INITIAL DECISION TO HAVE EMPLOYEE
 LEAVE SLIPS HELD IN ABEYANCE WAS ANNOUNCED AT A SUPERVISORY MEETING WITH
 BRENNAN ON JANUARY 6, 1980, IN ANTICIPATION OF A NEW LEAVE POLICY.
 HOWEVER, IT APPEARS THAT BRENNAN'S INSTRUCTIONS WERE APPARENTLY
 CONFUSING, ACCORDING TO STUART, WHO WAS PRESENT AT THE MEETING, AS SHE
 AND OTHER SUPERVISORS LEFT THE MEETING THINKING THAT THEY WERE TO RETURN
 THE LEAVE SLIPS TO THE EMPLOYEES AND THAT THEY SHOULD NOT HOLD THEM IN
 ABEYANCE.  THE MEETING DID MAKE CLEAR THAT SUPERVISORS WERE NOT TO
 APPROVE OR DISAPPROVE LEAVE SLIPS FOR THE PERIOD AFTER JUNE 1980 IN ANY
 EVENT.
 
    THE FIRST NOTICE OF THE ALLEGED CHANGE CONCERNING HOLIDAY LEAVE WAS
 GIVEN TO UNION REPRESENTATIVE STEWART ON OR ABOUT JANUARY 26, 1980.
 ALTHOUGH STEWART WAS ON LEAVE UNTIL AROUND JANUARY 14, 1980, BANKS, HER
 ALTERNATE FOR RECEIPT OF NOTICE OF CHANGES IN WORKING CONDITIONS, FIRST
 BECAME AWARE OF THE HOLIDAY LEAVE ON JANUARY 28, 1980, WHEN THE PROPOSAL
 WAS PASSED ON TO HIM BY STEWART.
 
    C.  CASE NO. 8-CA-401
 
    FOLLOWING THE DECEMBER 12, 1979 MEETING, PREVIOUSLY REFERRED TO, THE
 FIRST FORMAL PROPOSAL ON ANNUAL LEAVE WAS PRESENTED TO THE UNION ON
 JANUARY 26, 1980.  ACCORDING TO STEWART, THE PROPOSAL WAS ENTITLED
 "OFFICE POLICY ON HOLIDAY LEAVE".  WHEN SHE RECEIVED THE DOCUMENT FROM
 HYERT, IT WAS NOT DISCUSSED.  ON MONDAY, JANUARY 28, 1980, STEWART
 SHOWED THE DOCUMENT TO BANKS WHO RESPONDED NEGATIVELY DUE TO CHANGES
 THAT HE FELT HAS ALREADY OCCURRED REGARDING LEAVE IN CONJUNCTION WITH
 HOLIDAY.
 
    SOMETIME BETWEEN JANUARY 14, 1980, WHEN STEWART RETURNED TO WORK, AND
 JANUARY 26, 1980, WHEN SHE RECEIVED THE HOLIDAY LEAVE DOCUMENT, STEWART
 HAD BEEN SHOWN, BY HYERT, A ROUGH DRAFT ON PROPOSED LEAVE POLICY.
 HOWEVER, STEWART CONTENDED THAT THE ROUGH DRAFT CONCERNED LEAVE POLICY
 IN GENERAL AND NOT HOLIDAY LEAVE.  SINCE IT IS CLEAR FROM THE RECORD
 THAT RESPONDENT WAS IN THE PROCESS OF DRAFTING TWO PROPOSALS FOR LEAVE,
 STEWART'S RECOLLECTION IS PROBABLY CORRECT.  FURTHER STEWART STATES THAT
 IN HER DISCUSSIONS WITH HYERT, AT THE TIME HE SHOWED HER THE DRAFT,
 THEIR CONVERSATION WAS BRIEF AND PASSING.  HOWEVER, SHE STATES THAT SHE
 MADE SOME COMMENTS CONCERNING THE DRAFT.  HYERT TESTIFIED THAT HE
 INDICATED TO STEWART, ON HER RETURN, THAT HE HAD SOMETHING HE WAS
 WORKING ON AND THAT HE WOULD GIVE HER WRITTEN PROPOSALS WHEN THEY WERE
 READY AND HOLD A MEETING TO DISCUSS THE MATTER.
 
    THEREAFTER, ON JANUARY 30, 1980, STEWART AND BANKS MET WITH BRENNAN
 AND HYERT AT A LABOR-MANAGEMENT MEETING.  HOLIDAY LEAVE WAS AMONG THE
 ISSUED DISCUSSED AT THIS MEETING.  ACCORDING TO BANKS, HE TOLD BRENNAN
 THAT THE EMPLOYEES WERE LARGELY UNINFORMED ABOUT ANY NEW POLICY ON
 HOLIDAY LEAVE AND THAT TO THE EXTENT SOME KNEW ABOUT IT, THEY WERE
 DISSATISFIED.  BANKS RECALLED THAT BRENNAN SUGGESTED TO HIM THAT, IN
 VIEW OF THE FACT THAT BANKS HAD EARLIER REQUESTED TO HAVE A UNION
 MEETING AT THE OFFICE, PERHAPS THE MATTER COULD BE BROUGHT UP WITH THE
 EMPLOYEES IN THAT UNION MEETING.  /7/ BANKS COULD THEN REPORT TO BRENNAN
 ON THE EMPLOYEES' SENTIMENT ON THE ISSUE.  IN THE MEANTIME, UNIT
 MEETINGS WERE TO BE SCHEDULED, IN WHICH THE SUPERVISORS WOULD EXPLAIN
 THE NEW POLICY TO THE EMPLOYEES.  STEWART TESTIFIED THAT, SHE MAY HAVE
 INDICATED DURING THIS MEETING THAT MANAGEMENT SHOULD TALK TO THE
 EMPLOYEES ABOUT THE HOLIDAY LEAVE POLICY.  SHE FELT THAT THIS COULD BEST
 BE ACCOMPLISHED AT THE WEEKLY UNIT MEETINGS CONDUCTED BY THE
 SUPERVISORS.  STEWART ALSO RECALL THAT SHE ATTENDED A UNIT MEETING ON
 FEBRUARY 4, 1980, WHERE SHE NOTED TO HER SUPERVISOR THAT THE HOLIDAY
 LEAVE POLICY UNDER DISCUSSION WOULD HAVE TO BE APPROVED BY THE UNION.
 
    AS ALREADY NOTED, ON OR ABOUT FEBRUARY 4, 1980, SUPERVISORS DISCUSSED
 LEAVE POLICY DURING UNIT MEETINGS.  PRINCIPALLY, ACCORDING TO STEWART
 AND BANKS, THE SUPERVISORS READ TO EMPLOYEES WHAT APPEARED TO BE THE
 JANUARY 26, 1980 PROPOSAL WHICH HAD BEEN GIVEN TO STEWART.  LEAVE IN
 GENERAL AND NOT HOLIDAY LEAVE WAS DISCUSSED AT THESE MEETINGS.
 
    BRENNAN RECALLS THAT SUPERVISORS REPORTED, TO HIM, THE RESULTS OF THE
 UNIT MEETING DISCUSSIONS WITH EMPLOYEES ON THE HOLIDAY LEAVE ISSUE ON
 FEBRUARY 6, 1980.  THEN ON FEBRUARY 8, 1980, RESPONDENT PRESENTED THE
 UNION WITH A PROPOSAL ENTITLED, "LEAVE POLICY", DATED FEBRUARY 6, 1980.
 IN THE INTERIM, STEWART AND BANKS HAD SOME DISAGREEMENT REGARDING THE
 HANDLING OF THE LEAVE POLICY AND STEWART RESIGNED HER POSITION WITH THE
 UNION, LEAVING BANKS AND PATRICIA SANTA-MARIA AS PRINCIPAL UNION
 CONTRACTS.  THE LEAVE PROPOSAL APPARENTLY WAS THE SAME AS THE ONE SHOWN
 STEWART BY HYERT EARLIER WHEN IN DRAFT FORM.
 
    AT ABOUT THIS SAME TIME, THE UNION WAS ALSO GIVEN A COPY OF A REVISED
 PROPOSAL TITLED, "OFFICE POLICY ON HOLIDAY LEAVE", ALSO DATED FEBRUARY
 8, 1980.  THIS PROPOSAL HAD BEEN MODIFIED TO INCLUDE A "THIRD PRIORITY,"
 AND TO NOTE DATES ON WHICH EMPLOYEES COULD SIGN UP FOR ANNUAL LEAVE.
 THESE CHANGES MAY HAVE BEEN BASED ON WHAT THE SUPERVISORS HAD RELATED TO
 BRENNAN CONCERNING THE INFORMATION WHICH THEY HAD GATHERED FOR BRENNAN
 FROM EMPLOYEES DURING THE UNIT MEETINGS.
 
    BANKS STATES THAT AT THE TIME THAT HE AND SANTA-MARINA RECEIVED
 COPIES OF THE NEW LEAVE POLICY, HYERT INDICATED THAT THEY SHOULD STUDY
 WHAT HAD BEEN PROVIDED THE UNION AND COME UP WITH PROPOSALS OR
 "FEEDBACK".  THE UNIONS PROPOSALS OR "FEEDBACK" WERE PREPARED IN THE
 FORM OF BARGAINING PROPOSALS ON FEBRUARY 29, 1980.  THESE PROPOSALS
 COVERED ALL ASPECTS OF LEAVE INCLUDED IN THE NEW LEAVE POLICY AND THE
 CONTESTED HOLIDAY LEAVE PROPOSAL OF MANAGEMENT.
 
    RESPONDENT ANSWERED THE UNION ON MARCH 4, 1980 STATING:
 
    THIS IS TO INFORM YOU THAT I DO NOT WISH TO ENTER INTO NEGOTIATIONS
 WITH YOU CONCERNING THE
 
    TIME AND LEAVE POLICY AT THE LOS ANGELES TELESERVICE CENTER.  WHILE I
 APPRECIATE YOUR CONCERN
 
    ON THE POTENTIAL IMPACT OF THESE CHANGES, I LACK THE AUTHORITY TO
 NEGOTIATE ON THEM.
 
    THERE HAVE BEEN NO FURTHER CONTACTS WITH THE UNION ON THE ISSUE OF
 THE LEAVE POLICIES.
 
    SUBSEQUENTLY, ON MARCH 13, 1980, RESPONDENT ISSUED TO EMPLOYEES OF
 THE CENTER, TWO POLICIES ENTITLED "LEAVE POLICY" AND "OFFICE POLICY ON
 HOLIDAY LEAVE".  COMPARISON OF THE POLICIES WITH PREVIOUS LEAVE POLICY
 INDICATES THAT A NEW TYPE OF LEAVE, HOLIDAY LEAVE, AND VARIOUS
 PROCEDURES FOR SECURING HOLIDAY LEAVE;  A NEW QUOTA DESIGNATING THE
 NUMBER OF EMPLOYEES ELIGIBLE TO TAKE LEAVE AT ONE TIME;  THE
 INCORPORATION AND APPLICATION OF A TARDINESS POLICY AS PART OF THE LEAVE
 PROGRAM;  AND ADOPTION OF PROVISIONS APPLYING TO HANDICAPPED EMPLOYEES.
 
                        DISCUSSION AND CONCLUSIONS
 
    A.  CASE NO. 8-CA-379
 
    THE GENERAL COUNSEL CONTENDS THAT CERTAIN REMARKS MADE BY
 RESPONDENT'S CENTER MANAGER BRENNAN, ON FEBRUARY 5, 1980, TO EMPLOYEE
 FLOYD BANKS CONSTITUTE SEPARATE AND INDEPENDENT VIOLATIONS OF SECTION
 7116(A)(1) OF THE STATUTE.  FURTHERMORE, THE GENERAL COUNSEL MAINTAINS
 THAT THE FACTS ESTABLISH ANTI-UNION ANIMUS DISPLAYED BY RESPONDENT IN
 CONSIDERING BANKS FOR PROMOTION TO TECHNICAL ASSISTANT AND THAT UNION
 CONSIDERATIONS PLAYED A PART IN THE SELECTION PROCESS IN VIOLATION OF
 SECTION 7116(A)(2) AND (1) OF THE STATUTE.  RESPONDENT INSISTS THAT THE
 GENERAL COUNSEL HAS NOT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE
 THAT ANY VIOLATION OCCURRED RELATED TO THE FAILURE OF MANAGER BRENNAN TO
 SELECT BANKS FOR ONE OF THE THREE TECHNICAL ASSISTANT POSITIONS.
 RESPONDENT MAINTAINS THAT THE STATEMENTS MADE DURING THE COUNSELLING
 SESSION ARE UNCORROBORATED AND CANNOT BE REASONABLY CONSTRUED TO BE
 COERCIVE IN NATURE.  THE CHARGING PARTY UNION ALSO FILED A BRIEF IN THE
 MATTER URGING NOT ONLY THAT RESPONDENT VIOLATED SECTION 7116(A)(2) AND
 (1) WITH REGARD TO THE NON-SELECTION OF EMPLOYEE BANKS, BUT REQUESTING
 BY WAY OF REMEDY, THE RETROACTIVE PROMOTION OF BANKS TO THE TECHNICAL
 ASSISTANT POSITION, WITH BACK PAY.
 
    SECTION 7102 OF THE STATUTE GUARANTEES TO CERTAIN EMPLOYEES OF THE
 FEDERAL GOVERNMENT THE RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR
 REPRISAL TO FORM, JOIN, OR ASSIST ANY LABOR ORGANIZATION OR TO REFRAIN
 FROM SUCH ACTIVITY.  AGENCY MANAGEMENTS' ENCOURAGEMENT OR
 DISCOURAGEMENT
 OF THESE RIGHTS BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION
 OR OTHER CONDITIONS OF EMPLOYMENT IS VIOLATIVE OF SECTION 7116(A)(2) AND
 (1) OF THE STATUTE.  THE AUTHORITY HAS MADE IT CLEAR THAT SUCH VIOLATION
 OF THE STATUTE WILL BE FOUND IN THE FEDERAL SECTOR WHERE UNION
 CONSIDERATIONS ARE SHOWN TO HAVE PLAYED ONLY A PART IN MANAGEMENTS'
 ACTION.  THUS, IF MANAGEMENTS' RATING OF A DISCRIMINATEE OR ITS FAILURE
 TO SELECT A DISCRIMINATEE FOR PROMOTION WAS BASED IN WHOLE OR IN PART ON
 HIS UNION ACTIVITY A VIOLATION WILL BE ESTABLISHED.  U.S. DEPARTMENT OF
 HOUSING AND URBAN DEVELOPMENT, MILWAUKEE AREA OFFICE, MILWAUKEE,
 WISCONSIN, 7 A/SLMR 948,949, A/S/LMR NO. 92(1977);  DIRECTORATE OF
 SUPPLY OPERATIONS, DEFENSE LOGISTICS AGENCY, HEADQUARTERS, DEFENSE
 LOGISTICS AGENCY, 2 FLRA NO. 118(1980);  VETERANS ADMINISTRATION
 HOSPITAL, LEXINGTON, KENTUCKY, 2 FLRA NO. 110(1980).
 
    IN THIS MATTER, THERE ARE NO REAL INCONSISTENCIES AS TO WHAT WAS SAID
 TO BANKS DURING THE FEBRUARY 5, 1980 CONVERSATION.  WHILE THE
 CONVERSATION DID NOT FOCUS INITIALLY ON THE TECHNICAL ASSISTANT
 POSITIONS IT WITHOUT DOUBT SHIFTED TO CONSIDERATION OF THOSE POSITIONS
 BEFORE IT WAS CONCLUDED.  NOT EVEN BRENNAN DENIES THAT HE POINTED OUT
 PROBLEMS TO BANKS AND AMONG THOSE PROBLEMS WERE HIS PARTICIPATION IN
 UNION BUSINESS.  UNDER CASE LAW AS IT PRESENTLY STANDS THIS QUESTIONING
 ALONE IS SUFFICIENT TO FIND A VIOLATION OF THE STATUTE.
 
    "ANY REFERENCE TO PRIOR UNION MEMBERSHIP OR ACTIVITY OF AN APPLICANT
 IN AN INTERVIEW FOR
 
    PROMOTION IS, AT THE VERY LEAST, HIGHLY SUSPICIOUS, AND WHERE SUCH
 REFERENCE IS COMPLETELY
 
    EXTRANEOUS TO THE SUBJECT INTERVIEW, WITHOUT MORE CONSTITUTES A
 VIOLATION." SEE VETERANS
 
    ADMINISTRATION HOSPITAL, SUPRA.
 
    WHILE THE CONVERSATION WAS CHARACTERIZED BY BRENNAN AS A COUNSELLING
 SESSION IT WAS INITIATED AND OCCURRED ONLY ONE DAY BEFORE THE ACTUAL
 SELECTIONS TOOK PLACE AND SO NEAR AS TO BE PART OF THE SELECTION PROCESS
 FOR THOSE POSITIONS.  NOR DOES RESPONDENT CONTEND THAT THE SELECTION HAD
 ALREADY BEEN MADE BY BRENNAN WHEN THE CONVERSATION OCCURRED.  DURING THE
 CONVERSATION, IT IS UNDISPUTED THAT BRENNAN REFERRED TO BANKS'
 ACTIVITIES AS A LOCAL UNION REPRESENTATIVE, SUGGESTING SOME DOUBT AS TO
 HIS REASONS OR ABILITY TO SERVE IN A MANAGERIAL CAPACITY BECAUSE OF HIS
 UNION BACKGROUND.  AT THE SAME TIME, BRENNAN STATED, "WELL, WITH ALL THE
 TROUBLE YOU'VE GIVEN ME IN THE LAST YEAR DO YOU REALLY EXPECT ME TO PICK
 YOU FOR THAT POSITION".  WHILE BRENNAN REFERRED TO BANKS' SUNSHINE CLUB
 ACTIVITIES AS ONE OF HIS "PROBLEMS", I NOTE THAT BANKS HAD NOT BEEN THE
 SUNSHINE CLUB PRESIDENT IN OVER A YEAR, RAISING DOUBT THAT BRENNAN
 REALLY CONSIDERED THIS TO BE ONE OF THE PROBLEMS WHICH WOULD BAR A
 PROMOTION.  FURTHERMORE, IT IS NOTED THAT COINCIDENTALLY, BANKS HAD
 BEGUN SERVING IN THE ROLE OF UNION REPRESENTATIVE ABOUT ONE YEAR PRIOR
 TO THE CONVERSATION.  MOREOVER, THE RECORD DEMONSTRATED THAT BRENNAN DID
 INDEED HAVE DIFFICULTY IN SEPARATING BANKS THE EMPLOYEE FROM BANKS THE
 UNION REPRESENTATIVE.  THE JUNE 20, 1979 INCIDENT GRAPHICALLY
 ILLUSTRATES BRENNAN'S DIFFICULTY IN THIS RESPECT.  THERE, AS BRENNAN
 TESTIFIED, HE HAD DIFFICULTY IN KNOWING WHICH "HAT" BANKS WAS WEARING.
 THIS CONFIRMS BANKS EARLIER TESTIMONY THAT BRENNAN HAD TOLD HIM THAT HE
 COULD NOT SEPARATE THE TWO ROLES.  THIS INABILITY TO DISTINGUISH THE TWO
 ROLES SURFACED AGAIN DURING THE FEBRUARY 5 CONVERSATION.  BRENNEN'S
 AWARENESS OF AT LEAST ONE OF THE "HATS" IS POINTED OUT IN HIS COMMENT,
 "BUT YOU'RE THE UNION REPRESENTATIVE." MOREOVER, WHEN ALLUDING TO THE
 "TROUBLE" CAUSED BY BANKS OVER THE LAST YEAR, BRENNAN USED THE HYERT
 INCIDENT, WHERE BRENNAN WAS ADMITTEDLY CONFUSED ABOUT BANKS' DUAL ROLES.
  IN THIS SAME VEIN, BRENNAN TOLD BANKS THAT ONE OF THE REASONS HE WOULD
 HAVE PROBLEMS RECOMMENDING BANKS FOR A CLAIMS REPRESENTATIVE POSITION TO
 OTHER MANAGERS WAS BECAUSE OF HIS "APPLICATION OF TIME." THE TIME
 PROBLEM CITED AS AN EXAMPLE BY BRENNAN WAS AN INFORMAL GRIEVANCE
 PROCESSED ON BEHALF OF EMPLOYEE WALSH BY BANKS AS A UNION REPRESENTATIVE
 NOT AS AN EMPLOYEE.  BRENNAN FELT HAD TAKEN TOO LONG TO HANDLE THE
 MATTER.  WHILE RESPONDENT REPRESENTS THAT THIS CRITICISM WAS LIMITED TO
 THE CLAIMS REPRESENTATIVE POSITION, IT IS DIFFICULT TO CONCEIVE THAT
 BRENNAN COULD IGNORE THIS ACTION WHEN CONSIDERING BANKS FOR A POSITION
 IN HIS OWN OFFICE, ON WHICH HE WAS GOING TO MAKE A DECISION THE VERY
 NEXT DAY.
 
    THE EVIDENCE PRESENTED BY RESPONDENT THAT BANKS WOULD NOT HAVE BEEN
 SELECTED IN ANY EVENT MUST INDEED BE WEIGHED WITH SOME DEGREE OF CARE.
 IN MY VIEW, IT DOES NOT ESTABLISH BANKS TO BE THE PROBLEM EMPLOYEE THAT
 RESPONDENT WOULD MAKE HIM OUT TO BE.  RESPONDENT'S CHARACTERIZATION OF
 BANKS AS A "PROBLEM" COULD BE INTERPRETED AS BANKS BEING A PROBLEM FOR
 BRENNAN AND OTHER SUPERVISORY PERSONNEL WHEN ACTING IN HIS CAPACITY AS
 UNION REPRESENTATIVE PROCESSING GRIEVANCE, CHALLENGING MANAGEMENTS'
 ACTIONS, OR ADVISING AND AIDING OTHER EMPLOYEES CONCERNING PROBLEM THAT
 THEY MAY HAVE BEEN HAVING ON THE JOB.  BRENNAN'S CONCERN WITH BANKS'
 UNION REPRESENTATIONAL ROLE WAS CLEARLY CONVEYED, IN MY OPINION, TO
 BANKS DURING THIS CONVERSATION.
 
    ALTHOUGH IT IS FOUND THAT BRENNAN, WITHOUT QUESTION, CONSIDERED BANKS
 UNION ACTIVITIES WHEN CONSIDERING HIM FOR THE TECHNICAL ASSISTANT
 POSITION AND THAT THIS CONDUCT WAS VIOLATIVE OF SECTION 7116(A)(2) AND
 (1) OF THE STATUTE, IT IS NECESSARY TO REVIEW THE SELECTION PROCESS FOR
 THE TECHNICAL ASSISTANT POSITION SINCE THE CHARGING PARTY CONTENDS THAT
 BANKS SHOULD BE ENTITLED TO RETROACTIVE PROMOTION AND BACK PAY.  /8/
 
    IN ITS BRIEF, THE CHARGING PARTY ARGUES THAT THE COMMISSION OF AN
 UNFAIR LABOR PRACTICE CONSTITUTES AN UNJUSTIFIED AND UNWARRANTED
 PERSONNEL ACTION AND THAT BANKS IS ENTITLED BY VIRTUE OF THAT ACTION TO
 BOTH RETROACTIVE PROMOTION AND BACK PAY.  THE CHARGING PARTY CONTENDS
 THAT IN CHANGING THE BACK PAY ACT, CONGRESS INTENDED TO "REFLECT THE
 BROADER INTERPRETATION OF THE STATUTE THAT HAS BEEN GIVEN THE BACK PAY
 ACT IN RECENT YEARS BY THE COMPTROLLER GENERAL AND THE CIVIL SERVICE
 COMMISSION THROUGH DECISIONS AND REGULATIONS." LEGISLATIVE HISTORY P.L.
 95-453, 4 ADMINISTRATIVE NEWS 2836(1978).  FURTHER, THE CHARGING PARTY
 ASSERTS THAT ONCE A VIOLATION OF SECTION 7116(A)(2) AND (1) HAS BEEN
 ESTABLISHED THE BURDEN OF PROOF SHIFTS TO THE RESPONDENT TO SHOW THAT
 THE DISCRIMINATEE WOULD NOT HAVE BEEN SELECTED EVEN IF UNION ACTIVITIES
 WERE NOT CONSIDERED.  THE CHARGING PARTY MAINTAINS THAT THE BURDEN OF
 PROOF SHIFTED TO RESPONDENT ONCE A VIOLATION OF SECTION 7116(A)(2) AND
 (1) HAD BEEN ESTABLISHED AND THAT NOW RESPONDENT MUST SHOW THAT BANKS
 WOULD NOT HAVE BEEN SELECTED EVEN IF HIS UNION ACTIVITIES WERE NOT
 CONSIDERED.
 
    THE AUTHORITY ON MORE THAN ONE OCCASION HAS ADDRESSED THE BACK PAY
 ISSUE.  SPECIFICALLY IN DIRECTORATE OF SUPPLY, DEFENSE LOGISTICS AGENCY,
 SUPRA., THE AUTHORITY STATED THAT:
 
    UNDER THE BACK PAY ACT OF 1966, 5 U.S.C. SECTION 5596, IT IS
 NECESSARY NOT ONLY TO FIND
 
    THAT AN EMPLOYEE HAS BEEN ADVERSELY AFFECTED BY AGENCY MANAGEMENT'S
 IMPROPER ACTION, BUT ALSO
 
    THAT "BUT FOR" THE IMPROPER ACTION THE EMPLOYEE WOULD NOT HAVE
 SUFFERED A LOSS OR REDUCTION IN
 
    PAY, ALLOWANCES, OR DIFFERENTIALS.
 
    A REVIEW OF THE INSTANT RECORD CONVINCES THE UNDERSIGNED THAT, IF
 INDEED THE BURDEN OF PROOF SHIFTED AS THE CHARGING PARTY CONTENDS,
 RESPONDENT MET ITS BURDEN BY SHOWING THAT OTHER REASONS EXISTED FOR
 BANKS NON-SELECTION THAN UNION CONSIDERATIONS.  INDEED BANKS
 ACKNOWLEDGED AT LEAST TWO INCIDENTS IN WHICH HE HAD BECOME INVOLVED
 WHICH MIGHT WELL HAVE, IF TAKEN INTO CONSIDERATION, PREVENTED HIS
 SELECTION.  THESE INCIDENTS WERE BOTH DISCUSSED DURING THE SO-CALLED
 COUNSELLING SESSION OF FEBRUARY 5, 1980.  MORE IMPORTANTLY, THERE IS NO
 CLEAR CONVINCING EVIDENCE ON THIS RECORD WHICH WOULD ESTABLISH THAT
 BANKS WAS ANYMORE QUALIFIED FOR SELECTION THAN THE THREE EMPLOYEES
 ACTUALLY CHOSEN FOR THE TECHNICAL ASSISTANT POSITIONS.  FURTHERMORE, IF
 SELECTIONS WERE BASED ON RECOMMENDATION OF SUPERVISORS, PERFORMANCE
 APPRAISALS, LEAVE RECORDS AND TRAINING ABILITY, BANKS WAS NOT RANKED AS
 THE TOP APPLICANT IN ANY SINGLE CATEGORY.  WHILE BANKS WAS RATED IN THE
 TOP THREE SLOTS BY SOME SUPERVISORS THIS ALONE DOES NOT INDICATE HIS
 SELECTION WAS IMMINENT.  ANY FINDING THAT HE WOULD HAVE BEEN SELECTED
 "BUT FOR" HIS UNION ACTIVITIES WOULD BE PURELY SPECULATIVE.
 
    ALTHOUGH THE IMPACT OF THE CHARGING PARTY'S ARGUMENT IS RECOGNIZED,
 THE UNDERSIGNED IS CONSTRAINED TO FIND THAT THE EVIDENCE DOES NOT
 ESTABLISH AN UNJUSTIFIED AND UNWARRANTED PERSONNEL ACTION NOR DOES IT
 ESTABLISH THAT "BUT FOR" CONSIDERATION OF BANKS UNION ACTIVITIES HE
 WOULD HAVE BEEN SELECTED FOR ONE OF THE THREE TECHNICAL ASSISTANT
 POSITIONS.  /9/
 
    B.  CASE NO. 8-CA-380
 
    IT IS WELL ESTABLISHED THAT AN AGENCY MAY NOT ALTER PAST PRACTICES
 WITHOUT NOTIFYING THE COLLECTIVE-BARGAINING REPRESENTATIVE OF ITS
 EMPLOYEES AND AFFORDING IT AN OPPORTUNITY TO BARGAIN AS TO SUCH CHANGES.
  INTERNAL REVENUE SERVICE, 4 FLRA NO. 30(1980);  78TH DIVISION
 (TRAINING) KILMER USAR CENTER, EDISON, NEW JERSEY, 1 FLRA 97(1979).
 
    THE GENERAL COUNSEL'S POSITION IS THAT RESPONDENT IMPLEMENTED NEW
 PROCEDURES CONCERNING THE CENTERS' LEAVE POLICY WITH RESPECT TO ANNUAL
 LEAVE IN CONJUNCTION WITH HOLIDAY PERIODS IN EARLY JANUARY 1980.  THE
 ALLEGED CHANGE, IT IS ARGUED OCCURRED WHEN SUPERVISORS AT THE CENTER
 EITHER RETURNED OR HELD IN ABEYANCE LEAVE SLIPS SUBMITTED BY EMPLOYEES
 SEEKING TIME OFF IN CONJUNCTION WITH HOLIDAYS OCCURRING AFTER JULY 1980.
  RESPONDENT ASSERTS THAT NO CHANGE IN THE POLICY OCCURRED, BUT RATHER,
 THE POLICY ITSELF WAS BEING NEGOTIATED DURING JANUARY AND FEBRUARY 1980
 AND THAT RESPONDENT COULD NOT IMPLEMENT ANY NEW POLICY CONCERNING
 GRANTING OF LEAVE WHILE THAT POLICY WAS BEING NEGOTIATED WITHOUT RISKING
 AN UNFAIR LABOR PRACTICE CHARGE.
 
    THE MAIN THRUST OF THE GENERAL COUNSEL'S ARGUMENT IS THAT A CHANGE
 WAS EFFECTED SINCE EMPLOYEES ABILITY TO PUT IN FOR ANNUAL LEAVE AROUND
 HOLIDAY PERIODS WAS RESTRICTED UNILATERALLY BY NOT ALLOWING EMPLOYEES TO
 APPLY FOR SUCH LEAVE TRADITIONALLY APPROVED AS EARLY AS JANUARY OF EACH
 YEAR ON A FIRST-COME, FIRST-SERVE BASIS. WITH RESPECT TO THIS ISSUE THE
 RECORD DEMONSTRATES THAT NOT ONLY WAS THE PRACTICE OF APPROVING LEAVE
 FOR THE ENTIRE YEAR FOLLOWED BY THE PARTIES, AT LEAST SINCE 1978, BUT
 THAT RESPONDENT'S SUPERVISORS REFUSED TO PROCESS LEAVE FOR PERIODS AFTER
 JULY 1, 1980.  IT IS ALSO CLEAR THAT WHILE THE PARTIES WERE ENGAGED IN
 THE PREPARATION OF A NEW LEAVE POLICY RESPONDENT CHANGED THE
 REQUIREMENTS FOR RECEIVING LEAVE DURING 1980, BY INSTITUTING A NEW LEAVE
 CATEGORY.  THIS NEW CATEGORY WAS NOT DISCUSSED WITH THE UNION NOR DID IT
 SEE RESPONDENT'S PROPOSALS UNTIL WELL AFTER "HOLIDAY LEAVE" HAD BEEN
 IMPLEMENTED.  THE IMPLEMENTATION OF THAT CHANGE WAS DONE BY BRENNAN WHEN
 ON JANUARY 6, 1980 HE INSTRUCTED SUPERVISORS TO EITHER HOLD LEAVE SLIPS
 IN ABEYANCE OR RETURN THEM TO EMPLOYEES WHO HAD REQUESTED LEAVE AFTER
 JULY 1, 1980.  STEWART REPRESENTING THE UNION FIRST LEARNED THAT
 MANAGEMENT WAS PROPOSING CHANGES CONCERNING SPECIFIC HOLIDAY LEAVE
 POLICY ON JANUARY 26, 1980.  RESPONDENT'S ARGUMENT THAT IT FEARED AN
 UNFAIR LABOR PRACTICE CHARGE IF IT ALLOWED LEAVE IN THE NORMAL MANNER IS
 WITHOUT MERIT.  ITS SUBSEQUENT ACTIONS SHOW THAT IT HAD ALREADY DECIDED
 ON JANUARY 6, 1980 WHAT THE NEW LEAVE POLICY WOULD BE AND ITS ACTION IN
 IMPLEMENTING THE "HOLIDAY LEAVE" CATEGORY AROUND THE FIRST OF JANUARY
 WAS PART OF ITS NEW LEAVE PLAN.  A PLAN ARRIVED AT DURING BARGAINING.
 
    BOTH SIDES HAD ALREADY AGREED PURSUANT TO THE SURVEY TO WORK ON A NEW
 LEAVE POLICY.  FURTHERMORE, THE INITIAL HANDLING HAD BEEN DESIGNATED TO
 HYERT AND STEWART.  HOWEVER, STEWART WAS NOT AT WORK DURING THIS PERIOD,
 DID NOT SEE THE LEAVE PROPOSAL AND HAD NO INPUT.  WITHOUT SUCH UNION
 PARTICIPATION RESPONDENT COULD HARDLY BEGIN IMPLEMENTING ITS PLAN DURING
 THE COURSE OF BARGAINING.  TO DO SO, WHEN THE PARTIES HAD ALREADY AGREED
 TO NEGOTIATE THE MATTER SHOWS A LACK OF GOOD FAITH IN THE BARGAINING
 PROCESS.  THE CHIEF PROBLEMS ACCORDING TO THE LATE-NOVEMBER SURVEY WERE
 THAT THE SAME EMPLOYEES WERE GETTING THE SAME LEAVE EVERY YEAR, THE
 APPARENT DISPARATE APPLICATION OF THE TARDINESS POLICY, AND THE FACT
 THAT EMPLOYEES WERE EXPECTED TO ACCUMULATE 40 HOURS OF ANNUAL LEAVE
 BEFORE TAKING OFF.  SINCE THE RESPONSIBILITY FOR THE DRAFT WAS LEFT IN
 HYERT'S HANDS, IT IS NOT INCONCEIVABLE THAT HE WOULD BREAK THE PROPOSAL
 UP INTO TWO CATEGORIES.  HOWEVER, THIS WAS ONLY A PROPOSAL AT THIS POINT
 AND THE UNION WAS STILL ENTITLED TO INPUT.  SINCE RESPONDENT HAD SEIZED
 THIS OPPORTUNITY TO REVAMP THE CENTER'S ENTIRE LEAVE POLICY, THE UNION
 WAS CERTAINLY ENTITLED TO NEGOTIATE ANY SUCH CHANGES.  FAILURE TO ALLOW
 NEGOTIATION AND THE UNILATERAL IMPLEMENTATION OF THE HOLIDAY LEAVE
 POLICY WHILE THE PARTIES WERE ENGAGED IN NEGOTIATIONS ON THAT VERY LEAVE
 POLICY INDICATES A LACK OF GOOD FAITH BARGAINING.  MOREOVER, RESPONDENT
 CANNOT NOW CLAIM THAT IT FEARED AN UNFAIR LABOR PRACTICE CHARGE IF IT
 ALLOWED LEAVE FOR 1980 BEYOND JULY BECAUSE IT MIGHT WELL HAVE BEEN
 CONVINCED TO ELIMINATE HOLIDAY LEAVE IF NEGOTIATIONS HAD OCCURRED.  IN
 MY VIEW, RESPONDENT HAD A PRECONCEIVED NOTION OF WHAT IT WANTED THE NEW
 LEAVE POLICY TO BE AND THAT IT IMPLEMENTED ITS POLICY WITHOUT BARGAINING
 WITH THE UNION.
 
    ACCORDINGLY, IT IS FOUND THAT RESPONDENT UNILATERALLY CHANGED THE
 PROCEDURE WHICH EMPLOYEES AT ITS CENTER FOLLOWED TO SECURE ANNUAL LEAVE
 AROUND HOLIDAY TIMES PRIOR TO JANUARY 1980 WHILE THE PARTIES WERE
 ENGAGED IN NEGOTIATIONS CONCERNING LEAVE CHANGES IN VIOLATION OF SECTION
 7116(A)(5) AND (1) OF THE STATUTE.
 
    C.  CASE NO. 8-CA-401
 
    THE COMPLAINT IN THE ABOVE-CAPTIONED CASE ALLEGED A REFUSAL TO
 BARGAIN BASED ON RESPONDENT'S REFUSAL TO NEGOTIATE CHANGES IN AND THE
 ADOPTION OF TWO LEAVE POLICIES AT ITS CENTER AND THE UNILATERAL
 IMPLEMENTATION OF THOSE TWO POLICIES.
 
    IN ITS BRIEF, RESPONDENT URGES THAT THE UNION'S FAILURE TO RESPOND TO
 THE MARCH 4, 1980 LETTER CONSTITUTED A "CONSTRUCTIVE WAIVER" OF ITS
 RIGHT TO BARGAIN FURTHER ON THE MATTER.
 
    THE TEST FOR WAIVERS HAS BEEN CLEARLY ESTABLISHED IN THE FEDERAL
 SECTOR.  THE FACTS, IN A WAIVER SITUATION MUST CLEARLY AND UNMISTAKEABLY
 ESTABLISH THE EXISTENCE OF A WAIVER.  NASA, KENNEDY SPACE CENTER, 2
 A/SLMR 566, A/SLMR 223(1972);  DEPARTMENT OF HEALTH, EDUCATION AND
 WELFARE, WILKES-BARRE, PENNSYLVANIA, 7 A/SLMR 730, A/SLMR 889(1977);
 DEPARTMENT OF THE TREASURY, IRS, AUSTIN SERVICE CENTER, AUSTIN, 8 A/SLMR
 1187, A/SLMR 1142(1978);  IRS, FRESNO SERVICE CENTER, 8 A/SLMR 1034,
 A/SLMR 1119(1978);  EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 8 A/SLMR
 859, A/SLMR 1096(1978);  IRS, KANSAS CITY, OGDEN, ET. AL., 8 A/SLMR 741,
 A/SLMR 1074(1978);  SOCIAL SECURITY ADMINISTRATION, BRANCH OFFICE,
 ARLINGTON, TEXAS, 8 A/SLMR 170, A/SLMR 982(1978).  THE MARCH 4, 1980
 MEMORANDUM DESTROYS ANY ARGUMENT THAT THE UNION WAIVED ITS RIGHT TO
 NEGOTIATE CONCERNING LEAVE POLICIES.  THERE HYERT STATED:
 
    THIS IS TO INFORM YOU THAT I DO NOT WISH TO ENTER INTO NEGOTIATION
 WITH YOU CONCERNING THE
 
    TIME AND LEAVE POLICY . . . WHILE I APPRECIATE YOUR CONCERN ON THE
 POTENTIAL IMPACT OF THESE
 
    CHANGES, I LACK THE AUTHORITY TO NEGOTIATE ON THEM.
 
    UP TO THIS POINT, THE UNION HAD PATIENTLY WAITED FOR ITS OPPORTUNITY
 FOR INPUT AND INDEED HAD PREPARED ITS COUNTER-PROPOSALS FOR BARGAINING.
 AS RESPONDENT STATEMENT, IN BRIEF, THE MATTER OF NEGOTIATION OF LEAVE IS
 COVERED BY THE MASTER AGREEMENT VIRTUALLY ADMITTING NEGOTIABILITY OF THE
 SUBJECT.  NONETHELESS RESPONDENT CONTENDS THAT THE HYERT LETTER WAS
 ARTFULLY DRAWN TO SHOW CONCERN FOR HIS LACK OF AUTHORITY AT THE LOCAL
 LEVEL FOLLOWING AN AFGE NATIONAL CONSOLIDATION IN AUGUST 1979.  /10/
 MAYBE TOO CAREFULLY, FOR THIS LETTER ON ITS FACE CLEARLY REJECTS, IN MY
 MIND, THE UNION'S OFFER TO NEGOTIATE.  FURTHERMORE, THE PARTIES WERE IN
 THE MIDDLE OF NEGOTIATIONS WHEN RESPONDENT UNILATERALLY IMPLEMENTED ITS
 PROPOSALS.  IN ANY EVENT, RESPONDENT'S CONTENTION THAT THERE IS A WAIVER
 EITHER CONSTRUCTIVE OR CONTRACTUAL IN THIS MATTER IS REJECTED.  COMPARE
 DEPARTMENT OF HEALTH AND WELFARE, SOCIAL SECURITY ADMINISTRATION, OFFICE
 OF PROGRAM OPERATIONS AND FIELD OPERATIONS, SUTTER DISTRICT OFFICE, SAN
 FRANCISCO, CALIFORNIA AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 LOCAL 3172, AFL-CIO, CASE NOS. 9-CA-35, 36, 37 (ALJ DECISION, JULY 23,
 1980) AT FOOTNOTE 8, WHERE THE ADMINISTRATIVE LAW JUDGE FOUND NO
 CONTRACTUAL WAIVER IN EXAMINING THE VERY SAME MASTER AGREEMENT GOVERNING
 THE PARTIES HEREIN.  CLEARLY, IF THE ADMINISTRATIVE LAW JUDGE COULD FIND
 NO CONTRACTUAL WAIVER THERE, WHERE "FLEXIBILITY" IS NOT EXPLICITLY
 PROVIDED FOR AS A BARGAINABLE ITEM, THERE CERTAINLY CAN BE NO FINDING
 THAT A WAIVER EXISTS HERE WITH RESPECT TO "LEAVE", WHICH UNLIKE
 "FLEXIBILITY" IS EXPLICITLY PROVIDED FOR IN THE MASTER AGREEMENT.
 
    AS TO THE SPECIFIC ISSUE OF LEAVE, WHILE THE UNION DID NOT SEEK TO
 BARGAIN IN 1979 OVER THE EXPANSION OF THE QUOTA FOR EMPLOYEES SEEKING
 TIME OFF AROUND HOLIDAYS-- AND THIS IS CERTAINLY UNDERSTANDABLE SINCE
 SUCH CHANGE REDOUNDED TO THE BENEFIT OF THE BARGAINING UNIT-- IT WOULD
 BE LUDICROUS TO INFER THAT BY THAT "INACTION" THE UNION SOMEHOW WAS
 RELINQUISHING FOR ALL TIME ITS RIGHT TO BARGAIN ON LEAVE.  INDEED, THE
 RECORD SHOWS THAT BY COMPARISON, THE LEAVE PROPOSALS OF 1980 WERE THE
 FIRST SIGNIFICANT PROPOSALS THAT THE UNION HAD BEEN PRESENTED BY
 MANAGEMENT. AND, IN A TIMELY FASHION, THE UNION SOUGHT TO BARGAIN ON
 THOSE PROPOSALS ONCE PRESENTED WITH THEM.
 
    CASE LAW IS SETTLED THAT AN AGENCY MAY NOT ALTER TERMS AND CONDITIONS
 OF EMPLOYMENT IN THE ABSENCE OF AGREEMENT OR IMPASSE FOLLOWING GOOD
 FAITH BARGAINING, DEPARTMENT OF THE NAVY, NAVAL UNDERWATER SYSTEMS
 CENTER, NEWPORT NAVAL BASE, 3 FLRA NO. 64(1980);  U. S. DEPARTMENT OF
 THE TREASURY, INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, 8 A/SLMR
 NO.  497, A/SLMR NO. 1043(1978).
 
    ASSUMING THAT THE MEETINGS BETWEEN STEWART AND BANKS AND MANAGEMENT
 REPRESENTATIVE CONSTITUTED GOOD FAITH NEGOTIATIONS, ANY CHANGE IN TERMS
 AND CONDITIONS OF EMPLOYMENT WHILE ENGAGED IN THOSE NEGOTIATIONS WITHOUT
 AGREEMENT CONSTITUTES A VIOLATION OF THE STATUTE.  THE RECORD REVEALS
 THAT THE PARTIES HAD BEEN ENGAGED IN ACTIVE NEGOTIATION EFFORTS SINCE
 DECEMBER 1979 TO ESTABLISH A NEW LEAVE PROGRAM.  THUS, HYERT WAS
 DESIGNATED INITIAL RESPONSIBILITY FOR PREPARING DRAFT PROPOSALS AND HAD
 INDEED SHOWN THESE PROPOSALS TO UNION REPRESENTATIVE STEWART UPON HER
 RETURN TO WORK AROUND JANUARY 14, 1980.  ON JANUARY 28 STEWART RECEIVED
 A DRAFT MEMORANDUM FROM HYERT CONCERNING HOLIDAY LEAVE.  SOME DISCUSSION
 ENSUED CONCERNING HYERT'S PROPOSAL.  IN ADDITION THE UNION RECEIVED A
 COPY OF A LEAVE PROPOSAL ON FEBRUARY 4.  DURING THIS ENTIRE PERIOD
 EITHER BANKS OR STEWART MET WITH ONE OF THE MANAGEMENT REPRESENTATIVES
 CONCERNING THE LEAVE POLICY.  WHILE THERE WERE NO FORMAL AROUND THE
 TABLE DISCUSSIONS, IT IS CLEAR THAT THE PARTIES ACTIONS DURING THIS
 ENTIRE PERIOD CONSTITUTED NEGOTIATIONS CONCERNING THE LEAVE POLICY.
 
    IN ALL THE CIRCUMSTANCES OF THE CASE, IT IS FOUND THAT THE PARTIES
 WERE ENGAGED IN NEGOTIATIONS CONCERNING CHANGES IN EXISTING LEAVE POLICY
 AND THAT RESPONDENT, ON OR ABOUT MARCH 4, 1980 BROKE OFF THOSE
 NEGOTIATIONS AND UNILATERALLY IMPLEMENTED TWO NEW LEAVE POLICIES WITHOUT
 AGREEMENT OR IMPASSE.  BASED ON THE FOREGOING, IT IS CONCLUDED THAT
 RESPONDENT'S ACTIONS IN REFUSING TO BARGAIN CONCERNING THE NEW LEAVE
 PROPOSALS AND BY UNILATERALLY IMPLEMENTING THE TWO NEW LEAVE POLICIES
 WITHOUT GIVING THE UNION AN OPPORTUNITY TO BARGAIN VIOLATED SECTION
 7116(A)(5) AND (1) OF THE STATUTE.
 
                              RECOMMENDATION
 
    HAVING FOUND THAT CERTAIN CONDUCT OF RESPONDENT VIOLATED SECTION
 7116(A)(1), (2) AND (5) OF THE STATUTE, I RECOMMENDED THAT THE AUTHORITY
 ADOPT THE FOLLOWING ORDER.  /11/
 
                                   ORDER
 
    PURSUANT TO 5 U.S.C. SECTION 7118(A)(7)(A) AND 5 C.F.R. SECTION
 2423.28(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE OFFICE OF PROGRAM
 OPERATIONS, FIELD OPERATIONS, SOCIAL SECURITY ADMINISTRATIVE, SAN
 FRANCISCO REGION, SAN FRANCISCO, CALIFORNIA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERFERING WITH, RESTRAINING, OR COERCING FLOYD BANKS IN THE
 EXERCISE OF RIGHTS ASSURED BY THE STATUTE, BY REFERRING DURING THE
 COURSE OF A SELECTION PROCESS, TO HIS MEMBERSHIP OR ACTIVITIES ON BEHALF
 OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF
 SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION.
 
    (B) DISCOURAGING FLOYD BANKS FROM MEMBERSHIP IN AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL SECURITY DISTRICT
 OFFICE LOCALS, SAN FRANCISCO REGION, BY DISCRIMINATING AGAINST HIM IN
 REGARD TO EVALUATING HIS WORK PERFORMANCE AND HIS FITNESS FOR PROMOTION
 BASED ON UNION CONSIDERATIONS.
 
    (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING FLOYD BANKS OR ANY OTHER EMPLOYEE IN THE EXERCISE OF RIGHTS
 ASSURED BY THE STATUTE.
 
    (D) CHANGING THE LEAVE POLICY OF EMPLOYEES AT THE LOS ANGELES
 CALIFORNIA TELESERVICE CENTER REPRESENTED EXCLUSIVELY BY AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL SECURITY
 DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION, WITHOUT AFFORDING SUCH
 REPRESENTATIVE THE OPPORTUNITY TO BARGAIN IN GOOD FAITH, TO THE EXTENT
 CONSONANT WITH LAW AND REGULATIONS.
 
    (E) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTES.
 
    (A) RE-EVALUATE FLOYD BANKS' WORK PERFORMANCE FOR THE PERIODS
 COVERING FEBRUARY 1979 AND FEBRUARY 5, 1980, AND ENSURE THAT THE
 RE-EVALUATIONS ARE MADE FREE FROM ANY REFERENCE TO UNION MEMBERSHIP OR
 ACTIVITY.
 
    (B) TAKE ALL STEPS NECESSARY TO ENSURE THAT THE NEW EVALUATION OF
 FLOYD BANKS' WORK PERFORMANCE PURSUANT TO PARAGRAPH 2(A) ABOVE IS MADE
 AWARE OF THE REQUIREMENT THAT CONSIDERATIONS OF UNION MEMBERSHIP OR
 ACTIVITY MAY NOT PROPERLY ENTER INTO AN EVALUATION OF AN EMPLOYEES' WORK
 PERFORMANCE.
 
    (C) RERUN THE SELECTION PROCESS FOR FILLING THE POSITION OF TECHNICAL
 ASSISTANT, FOR THE PURPOSE OF REAPPRAISING THE APPROXIMATE FIVE
 CANDIDATES OF THE ORIGINAL BEST QUALIFIED LIST, INCLUDING FLOYD BANKS,
 IN AN ATMOSPHERE FREE FROM ANY REFERENCE TO, OR CONSIDERATION OF UNION
 MEMBERSHIP OR ACTIVITY.  SUCH REAPPRAISAL SHOULD CONSIDER THE
 RE-EVALUATION OF FLOYD BANKS WORK PERFORMANCE FOR THE PERIOD COVERED BY
 THE EVALUATION OF FLOYD BANKS BETWEEN FEBRUARY 1979 AND FEBRUARY 5, 1980
 FOR THE TECHNICAL ASSISTANT POSITION MANDATED BY PARAGRAPH 2(A) OF THIS
 ORDER.
 
    (D) TAKE ALL STEPS NECESSARY TO ENSURE THAT THE NEW SELECTING
 OFFICIAL RERUNNING THE SELECTION PROCESS PURSUANT TO PARAGRAPH 2(C) OF
 THIS ORDER IS MADE AWARE OF THE REQUIREMENT THAT CONSIDERATIONS OF UNION
 MEMBERSHIP OR ACTIVITY MAY NOT PROPERLY ENTER INTO AN APPRAISAL OF AN
 EMPLOYEES' FITNESS FOR PROMOTION.
 
    (E) RESCIND THE POLICY MEMORANDA OF MARCH 13, 1980 PERTAINING TO
 CHANGES IN LEAVE POLICY AND RESTORE THE LEAVE POLICY IN EFFECT PRIOR TO
 DECEMBER 1979 IN THE LOS ANGELES TELESERVICE CENTER.
 
    (F) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION
 OF ANY INTENDED CHANGES IN LEAVE POLICY OF LOS ANGELES TELESERVICE
 CENTER EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH,
 TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS.
 
    (G) POST AT ITS FACILITIES AT THE LOS ANGELES TELESERVICE CENTER, LOS
 ANGELES, CALIFORNIA COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
 FORMS TO BE FURNISHED BY THE AUTHORITY.  UPON RECEIPT OF SUCH FORMS,
 THEY SHALL BE SIGNED BY THE DIRECTOR, OFFICE OF PROGRAM OPERATIONS,
 FIELD OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION
 AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
 THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
 OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE
 DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
 ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (H) PURSUANT TO 5 C.F.R. SECTION 2423.29, NOTIFY THE REGIONAL
 DIRECTOR, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO
 WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                         ELI NASH, JR.
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  FEBRUARY 27, 1981
    WASHINGTON, D.C.
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
             POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 
                     RELATIONS STATUTE (92 STAT. 1191)
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEE FLOYD BANKS
 IN THE EXERCISE OF HIS RIGHTS ASSURED BY THE STATUTE BY REFERRING,
 DURING THE SELECTION PROCESS, TO HIS MEMBERSHIP OR ACTIVITIES ON BEHALF
 OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF
 SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION.
 
    WE WILL NOT DISCOURAGE EMPLOYEE FLOYD BANKS FROM MEMBERSHIP IN THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL
 SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION BY DISCRIMINATING
 AGAINST HIM IN REGARD TO EVALUATING HIS WORK PERFORMANCE AND HIS FITNESS
 FOR PROMOTION BASED ON UNION CONSIDERATIONS.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE EMPLOYEE FLOYD BANKS OR ANY OTHER EMPLOYEE IN THE EXERCISE OF
 RIGHTS ASSURED BY THE STATUTE.
 
    WE WILL NOT CHANGE THE LEAVE POLICY OF EMPLOYEES REPRESENTED
 EXCLUSIVELY BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION,
 WITHOUT AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO BARGAIN IN GOOD
 FAITH, TO THE EXTENT CONSONANT WITH LAW AND REGULATION.
 
    WE WILL RE-EVALUATE EMPLOYEE FLOYD BANKS' WORK PERFORMANCE FOR THE
 PERIOD COVERING FEBRUARY 1979 TO FEBRUARY 5, 1980 AND WILL ENSURE THE
 RE-EVALUATIONS ARE MADE FREE FROM ANY REFERENCE TO UNION MEMBERSHIP OR
 ACTIVITY.
 
    WE WILL RERUN THE SELECTION PROCESS FOR FILLING THE TECHNICAL
 ASSISTANT POSITION FOR THE PURPOSE OF REAPPRAISING THE FIVE CANDIDATES
 ON THE ORIGINAL BEST QUALIFIED LIST, INCLUDING EMPLOYEE FLOYD BANKS, IN
 AN ATMOSPHERE FREE OF ANY REFERENCE TO OR CONSIDERATION OF UNION
 MEMBERSHIP OR ACTIVITY.  THE REAPPRAISAL WILL CONSIDER THE RE-EVALUATION
 OF EMPLOYEE FLOYD BANKS' WORK PERFORMANCE FOR THE PERIOD FROM FEBRUARY
 1979 TO FEBRUARY 5, 1980.
 
    WE WILL TAKE ALL STEPS NECESSARY TO ENSURE THAT THE NEW SELECTING
 OFFICIAL RERUNNING THE SELECTION PROCESS IS MADE AWARE OF THE
 REQUIREMENT THAT CONSIDERATIONS OF UNION MEMBERSHIP OR ACTIVITY MAY NOT
 PROPERLY ENTER INTO AN APPRAISAL OF AN EMPLOYEE'S FITNESS FOR PROMOTION.
 
    WE WILL NOTIFY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS, SAN FRANCISCO REGION
 OF ANY INTENDED CHANGE IN LEAVE POLICY OF LOS ANGELES TELESERVICE CENTER
 EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH, TO THE
 EXTENT CONSONANT WITH LAW AND REGULATIONS.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:  (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, 350 SOUTH FIGUEROA
 STREET, 10TH FLOOR, LOS ANGELES, CALIFORNIA 90071.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE GENERAL COUNSEL'S RESPONSE BRIEF ASSERTED THAT THE
 RESPONDENT'S EXCEPTIONS SHOULD NOT BE CONSIDERED BECAUSE THEY WERE FILED
 ONE DAY LATE.  SUCH ASSERTIONS MUST BE REJECTED.  THUS, ON JUNE 10,
 1981, THE AUTHORITY SERVED ON ALL PARTIES HEREIN ITS ORDER GRANTING THE
 RESPONDENT'S REQUEST TO WAIVE THE EXPIRED TIME LIMIT, AND ACCEPTING THE
 RESPONDENT'S EXCEPTIONS AS TIMELY FILED, ON THE BASIS OF A FINDING THAT
 "EXTRAORDINARY CIRCUMSTANCES" EXISTED FOR DOING SO WITHIN THE MEANING OF
 SECTION 2429.23(B) OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    /2/ VARIOUS AMENDMENTS TO THE COMPLAINT AND ANSWER WERE ALLOWED AT
 THE HEARING.
 
    /3/ THE CHARGING PARTY FILED A BRIEF COVERING THE COMPLAINT IN
 8-CA-379.
 
    /4/ THE POSITION OF TECHNICAL ASSISTANT, CLASSIFIED AS LEAD CONTACT
 REPRESENTATIVE, IS A NON-BARGAINING UNIT POSITION AND IS CONSIDERED BY
 THE PARTIES TO BE A SEMI-MANAGEMENT POSITION.
 
    /5/ BANKS TESTIFIED THAT HE WAS OFTEN APPROACHED BY EMPLOYEES IN THE
 OFFICE REGARDING UNION MATTERS.  HE ESTIMATED THAT THIS OCCURRED
 APPROXIMATELY 20 TIMES A DAY.  BANKS ALSO STATED THAT THIS CONVERSATION
 WITH BRENNAN REGARDING THE FACT THAT HE SHOULD FILL OUR THE TIME FORMS
 FOR BRIEF CONVERSATIONS WAS THE FIRST TIME THAT BRENNAN HAD MENTIONED
 ANYTHING TO HIM ABOUT HIS USE OF TIME.
 
    /6/ UNDER THE PRE-JANUARY 1980 LEAVE POLICY, ANNUAL LEAVE WAS GRANTED
 ON A FIRST-COME, FIRST-SERVE BASIS, DEPENDING ON THE NEEDS OF THE
 OFFICE.  IN GENERAL, IT APPEARS THAT THE CENTER ALLOWED NO MORE THAN 15%
 OF AN OFFICE'S EMPLOYEES ON LEAVE AT THE SAME TIME.  HOWEVER, THERE WAS
 SOME SUPERVISORY DISCRETION TO EXTEND LEAVE, PARTICULARLY WHERE THE
 OFFICE BEING SUPERVISED WOULD REMAIN OPERATIONAL OR IF EXTENUATING
 CIRCUMSTANCES EXISTED SUCH AS THE LEAVE REQUESTED WAS FOR A MONDAY OR
 FRIDAY AND THE HOLIDAY FELL ON A TUESDAY OR THURSDAY.  ALSO, RESPONDENT
 EXPERIMENTED WITH A LIST FOR HOLIDAY LEAVE IN 1979, BUT APPARENTLY
 ABANDONED THAT PRACTICE SOMETIME DURING THE YEAR.
 
    /7/ A UNION MEETING WAS HELD ON OR ABOUT FEBRUARY 7, 1980 AND BANKS
 REPORTED THE RESULTS OF THE MEETING, INVOLVING THE HOLIDAY LEAVE ISSUE
 TO BRENNAN.
 
    /8/ IN AGREEMENT WITH THE GENERAL COUNSEL, IT IS FOUND THAT THE
 STATEMENTS CONCERNING BANKS' UNION ACTIVITIES, WHICH OCCURRED DURING THE
 CONVERSATION, ALSO CONSTITUTE AN INDEPENDENT VIOLATION AN INDEPENDENT
 VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE.
 
    /9/ IN RE RETROACTIVE APPOINTMENTS, 54 COMP.GEN. 69(1974) AND IN REN
 ANNETTE SMITH, 56 COMP.GEN. 732(1977) CITED BY THE CHARGING PARTY ARE
 DISTINGUISHABLE ON THEIR FACTS.
 
    /10/ FURTHERMORE, RESPONDENT FAILS TO RECOGNIZE THAT SECTION
 2422.2(H)(8) OF THE RULES AND REGULATIONS OF THE AUTHORITY PROVIDES:
 
    UPON THE ISSUANCE OF A CERTIFICATE ON CONSOLIDATION OF UNITS, THE
 TERMS AND CONDITIONS OF
 
    EXISTING AGREEMENTS COVERING THOSE UNITS EMBODIED IN THE
 CONSOLIDATION SHALL REMAIN IN EFFECT
 
    EXCEPT AS MUTUALLY AGREED TO BY THE PARTIES UNTIL A NEW AGREEMENT
 COVERING THE CONSOLIDATED
 
    UNIT BECOMES EFFECTIVE.  45 CFR 2422.2(