12:0667(132)CA - HHS, SSA, Baltimore, MD and AFGE -- 1983 FLRAdec CA
[ v12 p667 ]
The decision of the Authority follows:
12 FLRA No. 132 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 9-CA-20032 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in certain unfair labor practices and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge further found that certain other statements made by the Respondent were not violative of section 7116(a)(1) of the Statute; exceptions with regard to one of these statements were filed by the General Counsel. Pursuant to section 2423.29 of the Authority 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, and noting especially that exceptions were filed only as to one of the Judge's findings, the Authority hereby adopts the Judge's findings, conclusions and recommendations except as modified below. Contrary to the Judge, the Authority finds, in agreement with the General Counsel, that the Respondent violated section 7116(a)(1) of the Statute when Supervisor Johnson, on September 11, 1981, told Union Steward Chun that she "had just read Chun's 20-page audit and wasn't Chun embarrassed that it was so poor and that Chun had not been performing very (well) as a Service Representative." Noting particularly that the statement was made by her second line supervisor during a labor-management relations meeting in which Chun was the Union spokesman and that the statement was completely unrelated to any matters previously discussed at that meeting, the Authority concludes that such a statement denigrating Chun's work performance in the context of a labor-management discussion could reasonably have the effect of inhibiting Chun's performance as a union steward and was in these circumstances coercive of Chun's protected right to present grievances to that level of supervision and thereby interfered with her right to engage in protected activity under section 7102 of the Statute. /1A/ ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, shall: Cease and desist from: (a) Interfering with, restraining, or coercing Denise Chun in the exercise of her duties as a steward of the American Federation of Government Employees, AFL-CIO, by making statements to her directly relating her activities as a AFGE steward to (1) the quality of her job performance, (2) her potential for promotion, and (3) her concern for other employees; or by raising such matters at a time Chun is fulfilling her responsibilities as a union steward. (b) In any like or related manner, interfering with, restraining, or coercing Denise Chun, or any other employee, in the exercise of rights guaranteed by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purpose and policies of the Statute: (a) Post at its Region IX, San Francisco Sutter Street offices, in conspicuous places where notices to employees are customarily posted, copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by a representative of the Department of Health, and Human Service, Social Security Administration, Baltimore, Maryland, and shall be posted for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that said Notices are not altered, defaced, or covered by any other material. (b) Pursuant to section 2424.30 of the Authority's Rules and Regulations, notify the Regional Director of Region IX, 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. Issued, Washington, D.C., August 30, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, 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 Denise Chun in the exercise of her duties as a steward of the American Federation of Government Employees, AFL-CIO, by making statements to her directly relating her activities as a AFGE steward to (1) the quality of her job performance, (2) her potential for promotion, and (3) her concern for other employees; or by raising such matters at a time when Chun is fulfilling her responsibilities as a union steward. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce Denise Chun, or any other employee in the exercise of rights guaranteed by the Federal Service Labor-Management Relations Statute. (Activity) Dated: . . . By: (Signature) (Title) 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 its provisions, they may communicate directly with the Regional Director, Region IX, for the Federal Labor Relations Authority whose address is: 530 Bush Street, Room 542, San Francisco, California 94108, and whose telephone number is: (415) 556-8105. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 9-CA-20032 Michael A. Amaro, and Thomas J. Lee, Esq. For the Respondent Vince Morgante For the Charging Party Bari Stolmack Ness, Esq. For the General Counsel Before: FRANCIS E. DOWD Adnistrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, herein referred to as the Statute, 92 Stat., 1191, 5 U.S.C. 7101, et seq. It was instituted by the Acting Regional Director of the Ninth Region of the Federal Labor Relations Authority by the issuance of a Consolidated Complaint and Notice of Hearing dated December 30, 1981. /1/ The Complaint was issued following an investigation of an unfair labor practice charge filed on October 14, 1981 by American Federation of Government Employees, AFL-CIO, herein referred to as the Union, Charging Party, or AFGE. The Complaint alleges that Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, herein referred to as Respondent or SSA, violated Section 7116(a)(1) by reason of statements made to Union Steward Denise Chun, which tended to interfere with, restrain, or coerce Chun in the exercise of rights guaranteed under the Statute. Respondent filed an Answer denying any violation of the Statute. The only issues to be resolved are whether the statements were made and, if so, whether such statements violate Section 7116(a)(1). Resolution of the factual issue hinges upon making a credibility resolution. A hearing was held in San Francisco, California, at which time the parties were represented by counsel and afforded full opportunity to adduce evidence and call, examine and cross-examine witnesses and argue orally. Briefs filed by the General Counsel and Respondent have been duly considered. Upon consideration of the entire record in this case, including my evaluation of the testimony and evidence presented at the hearing, and from my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommended order. /2/ Findings of Fact 1. At all times material herein, the Union has been, and is, a labor organization within the meaning of 5 U.S.C. 7103(a)(4) of the Statute. 2. At all times material herein, Respondent has been, and is, an agency within the meaning of Section 7103(a)(3) of the Statute. 3. On August 30, 1979, AFGE was certified as the exclusive representative of a national consolidated unit consisting of, among other units, the following unit: All General Schedule (GS) employees in Region ix (San Francisco Region), Bureau of District Office Operations, Social Security Administration, Department of Health and Human Services, excluding management officials, supervisors, guards, professionals, employees engaged in Federal personnel work in other than a purely clerical capacity, NYC, WIN, and Work-Study employees. 4. At all times material herein, the terms and conditions of a local collective bargaining agreement have been in effect between the Union and Social Security Administration, covering the employees in the unit described above. 5. At all times material herein, Joyce Johnson and Denise Smith were supervisors and/or management officials within the meaning of Sections 7103(a)(10) and/or (11) of the Statute, respectively, and agents of the Respondent. Johnson was the Operations Officer of Respondent's Sutter Street Office and she negotiated labor-management issues which had a day-to-day impact or which constituted an operational change. Denise Smith is the District Manager at the Sutter Street Office and she negotiated matters which had a District-wide impact, including new personnel policies or policy changes. The aforesaid negotiations were conducted with Union representative Denise Chun, steward at the Sutter Street offices of Respondent. Chun also served as Union Bay Network Vice-President. She has been employed by SSA since 1976 and has been a steward for approximately four years. 6. Denise Chun's Union activities are numerous. She bargains, files grievances, reports violations, has numerous complaints brought to her, attempts to informally resolve problems, and contacts the numerous officials in the local and branch offices of the Union. During the course of performing her Union duties, both as the local steward and as the Network Vice-President, Chun has occasion to use official time. In order to obtain this official time, Chun would submit a Form SSA-75, "Request for Official Time" sheet at the close of the business day or at the end of the week and management would sign off on it. Respondent's witness Joyce Johnson confirms that it was the practice to approve Chun's use of official time "post-adjudicatively." /3/ Article 11, Section B, of the Agreement states that in granting official time the following "limits" shall apply: "The Network Vice-Presidents may spend up to fifteen (15) percent of their available working time in an operating month." According to Chun, she has been instructed by the Union that this section is to be interpreted as establishing a minimum and not a ceiling (Tr. 100, 101). With respect to Chun's duties as a Local Steward, Article 11, Section A states that "Reasonable amounts of time shall be granted" for specified labor-management activities. Chun's own interpretation of this Article is that it contains no ceiling and no minimum (Tr. 99, 100). Although the parties' collective bargaining agreement contains a provision for Respondent to contest the misuse or abuse of the official time allocation (GC EX 2, pg. 22, Article 11, Section D), there is no evidence that management ever filed a complaint, even though Chun often devoted the entire workday to Union activity. As correctly noted in the General Counsel's brief, official time allocation is not an issue in this proceeding. This is because management always approved Chun's requests for official time, regardless of whether the requests were not made in advance, and regardless of whether the amount of time may have been deemed unreasonable. The foregoing references to the parties' collective bargaining agreement, as well as Chun's testimony concerning interpretations thereof, are significant because this evidence corroborates the testimony of Johnson who stated (1) that she had to speak to Chun on more than three occasions about her use of official time, and (2) that before Johnson left the office in November, steps had been initiated to require Chun to obtain advance approval of her official time requests. In my opinion, what this case is all about is the reactions and responses by supervisory officials of Respondent in a situation where they have to deal with an intelligent, articulate, and extremely aggressive Union steward. The Alleged Unfair Labor Practices 7. On July 2, 1981, Denise Chun met with Joyce Johnson in her office to discuss full security guard coverage and the number of Service Representatives that would be designated on any given day for late interviewing as well as the various options the Service Representative team could take. Upon completion of that discussion, Chun changed the subject to a more personal matter; i.e. her own job and the fact that she was thinking about going to law school if she could "work out her schedule" with SSA. /4/ Johnson replied that she felt that Chun certainly was "smart enough for it." Chun's remark that she would have to work out a schedule with SSA prompted, in my opinion, Johnson to bring up the subject of Chun's union activities and the amount of time spent by Chun in those activities. Because the tone of the conversation apparently was rather friendly at this point in time, Johnson asked Chun if she ever considered working for the Union full-time or transferring to another Social Security Office where her union activities did not cause such an impact, and where management would not be so concerned. Clearly, if Chun genuinely wanted to go to law school and was concerned about adding this to her already busy schedule, Johnson's suggestion probably was intended to be helpful. However, it wasn't received that way by Chun, particularly when Johnson added that the time being spent by Chun on union activity was impacting on her service to the public. /5/ This obvious criticism of one's performance is the kind of remark that many employees would find offensive, even those with a less combative personality than Chun. The record doesn't indicate precisely how Chun, an articulate and aggressive person, responded to Johnson's accusation, but apparently one thing led to another and the conversation ended with Johnson stating to Chun that she had a king-sized ego, that her ego was so big that it was standing in the office next door, and that her ego was so big that it probably slept in a twin bed next to her. 8. On July 21, Chun and Johnson had a dispute over whether Chun was allowed to poll employees on worktime. According to Johnson, whose version I credit, Chun broke an agreement to confine her polling to the lunchroom during a specified period of time. When Johnson discovered Chun polling employees at their work station, Chun replied that she could poll employees wherever she wanted and that it was not "internal union business" even though it involved asking employees whether they wanted to accept a management proposal concerning lunch schedules. The following day, on July 22, Chun and Johnson met again, to discuss the reorganization of the Title 16 program. About three-quarters of the way through the meeting Johnson stopped and stated to Chun that she really wanted to apologize for her behaviour regarding the events of the previous day. Chun responded that an apology wasn't necessary, that she didn't want a repetition of such a dispute. At that point Johnson repeated what she had told Chun the previous day, namely, that Chun had a habit of flaunting her Union activity "in management's face." Johnson then launched into a discussion about Chun being 31 years of age, and still only a Service Representative and a GS-7. Johnson stated that Chun's rank and position were the result of the time she spent engaging in Union activity and that Chun was not likely to get ahead or to be promoted within the agency so long as she continued to engage in Union activity. She also stated that the AFGE Council was run by Claims Representatives and that National Union officials were GS-10s and above, and that Chun could no more further her career in the Union hierarchy or in the Agency until she could get promoted to a Claims Representative, and that such a promotion was unlikely until she reduced her Union activity and her use of Official time. 9. On September 11, 1981, Johnson again met with Chun to discuss telephone coverage in the Service Representative unit. The issue had been raised in a Service Representatives' unit meeting, occurring on September 9th. During that meeting a number of other issues were raised such as the account numbers assigned, the account number station, a numbers flasher and a numbers dispenser, but the most important issue was the telephone coverage since a clerical named Mike McDermott was being promoted out of the unit. Apparently two options were being considered: (1) that telephone coverage would be done by Service Representatives, or (2) that management would replace the lost clerical with another. The meeting began with Johnson questioning Chun as to whether the agency had to contact the Union regarding the changes and Chun advised that it did. Johnson then stated that she had already made certain changes, about which Chun advised she had no objection because there was no material impact. After Johnson advised about making the changes and Chun responded, Johnson abruptly changed the conversation stating that she had just completed reading Chun's 20-page audit given to her by Jim Brown. She asked Chun if she wasn't embarrassed that it was so poor. She then stated that she wondered what Chun's appraisal would look like and that she hadn't been performing well as a Service Representative. Chun asked Johnson if she could get back to the conversation regarding the telephone coverage. The meeting concluded with Chun stating that she would get back to Johnson by the close of business. 10. On Wednesday, October 7, 1981, at approximately 11:20 a.m. Chun received a telephone call from Joyce Johnson asking her to come to her office. Chun asked whether the matter could wait until the following week because she was departing for Union training in Long Beach at 1:00 p.m. Johnson stated that she already was aware that Chun was scheduled to leave as she had just signed off on Chun's leave-without-pay slips. She stated that the matter would not wait until Chun returned from leave so she would discuss it with Chun over the telephone. She began by saying that Chun was not performing well as a Service Representative as she was always on official time, engaged in Union activities of dubious value to the Agency. She stated that Chun's co-workers had been complaining about Chun not doing her fair share of the Service Representative work and that they didn't bring their complaints to Chun directly because she was the Union steward. She stated that Chun was probably in the wrong job, that she really wasn't performing well, and asked her if she had ever considered getting a job in Labor Relations elsewhere. She reiterated her statements that Chun wasn't performing well as a Service Representative, because she was on official time, engaged in Union activities. Chun responded by stating that she held several Union positions. Johnson said that she would discuss the matter with her later and that ended the conversation. It should be noted that Johnson was a second-line supervisor. Chun was immediately supervised by Jim Brown, and later, by LaVonne Wilson. 11. On October 14, 1981, Chun submitted two memos to District Director Denise Smith involving unilateral actions. Chun and Smith met to discuss these matters and Smith agreed to rescind the unilateral action, but she had some questions regarding the rotation of Claims Development Clericals to the Mail Room. She thought the matter had been negotiated earlier in the year. When Chun disagreed, Smith agreed to rescind the memo. At that point, Smith changed the subject and advised Chun that she had just completed reading Chun's 20-page audit and that it was criminal that she had not been performing and was not performing as a Service Representative. She stated that she would begin denying Chun's official time and that Chun would receive written notice the following day to that effect. She stated that Chun's performance as a Service Representative was deplorable and that she would reduce the official time to 15 percent of the operating month. A conversation thereafter ensued between Chun and Smith, regarding the circumstances which had preceded the performance audit. Smith ended the conversation by stating that Chun's abilities as a Service Representative were never in question, but that her Union activities and the time she spent on official time accounted for Chun's appraisal. As Chun got up to leave the office, Smith stated that Chun ought to learn to be more selfish and concerned with her career in the agency rather than with other people's rights. /6/ Two days later, the instant unfair labor practice charge was filed by the Union. The Testimony of Respondent's Witnesses 12. In her testimony, Johnson admitted that in her opinion the amount of time spent on Union activities affected Chun's ability to perform her assigned work for SSA. She admitted that this "bothered" her because she felt Chun's primary function, for which she was being paid by SSA, was to function as a Service Representative. Johnson believes that Chun's failure to be available to fully perform her Service Representative duties had an impact on her service to the public because she wasn't on duty to answer the phone and people had to wait longer before they were serviced. What particularly bothered Johnson was the fact that Chun was violating the terms of the floater agreement and simply not living up to the terms of the bargain she had made with Johnson. The floater agreement was entered into shortly after Johnson arrived there in June 1981. In order to accommodate Chun's Union activities, Chun was given a schedule whereby she would do less than the full range of Service Representative duties. She was required to be up at the front desk for the first 12 working days per month and the balance of her time was for her adjudication duties at her own work station. For her part, Chun was expected to confine her labor-management activities to the latter half of the month. For its part, management was supposed to defer labor-management issues and problems to the latter part of the month. According to Chun, situations arose when labor-management problems arose during the first half of the month. When these occurred, management recognized that it was an exception to the agreement and authorized official time. Notwithstanding the fact that she was granted official time, Chun seemed to feel that management was in effect repudiating the agreement, thus permitting her to regard the agreement as null and void. This was Chun's explanation and, indeed, her excuse for not keeping her part of the bargain. But it was the fact that Chun had made an agreement and was completely disregarding it, that really bothered Johnson. The question is what, if anything, did Johnson do about Chun's noncompliance with the terms of the floater agreement. In her testimony, Johnson insisted that the only thing she did was to call Chun into her office to remind her of their agreement. Thus, whenever Johnson was asked whether she discussed with Chun the amount of official time utilized by Chun, Johnson's response was limited to saying that she was merely reminding Chun of her obligation to comply with the floater agreement. Johnson did not attempt to relate the nature of these conversations in terms of what was said by each party. With a few exceptions, Johnson did not attempt to present a different version of the conversation. Rather, Johnson either did not recall or categorically denied suggesting to Chun that there was a relationship between her union activities and her job performance. Johnson also denied suggesting to Chun that she might consider transferring to another office where her union activities would have less impact on her own performance. Notwithstanding Johnson's true sentiments and clear displeasure with Chun's significant use of official time, she nevertheless asserts that she never communicated those feelings to Chun. I find this to be incredible. Chun's excessive use of official time was a continuing problem to management because, according to Johnson, there was an adverse impact on the public to be served, and her co-workers were complaining to management that Chun was not pulling her fair share of the workload. In these circumstances, it is unrealistic to conclude that Johnson had the forebearance to restrain from discussing this with Chun. Except as otherwise noted above, and based upon my observation of the witnesses and their demeanor, I am unable to accept as credible, the testimony of Johnson. Rather, I rely on the more plausible and more believable version of Chun with respect to the statements alleged to be violations of Section 7116(a)(1). 13. Denise Smith testified that the sole subject discussed with Chun was use of official time. She instructed Chun to comply with the Master Agreement provisions and obtain advance approval for any official time requested. Smith's request was later repeated in a written memorandum. Smith admits talking to Johnson about the amount of official time used by Chun but denies discussing or even knowing about Chun's performance as a Service Representative. Because the two subjects are obviously interrelated, and because Johnson was extremely concerned about it herself, I find it hard to believe that Smith would be unaware of Chun's performance as a Service Representative. A more likely scenario is that Johnson's displeasure with Chun and the supervisor's performance audit of Chun's performance were both communicated to Smith who, in turn, felt it was necessary to mention these matters to Chun, perhaps by way of explanation or justification, at the meeting when Smith advised Chun that management had decided to no longer approve her official time requests after the fact. Smith's answers to questions were evasive whereas Chun's recollection of detail was unmatched by either of Respondent's witnesses. Based upon my observation of the witnesses and their demeanor, and for the reasons previously stated, I discredit Smith and accept the testimony of Chun. Discussion and Conclusions of Law Section 7102 of the Federal Service Labor-Management Relations Statute insures that each employee shall have the right to form, join, or assist a labor organization without fear of penalty of reprisal and that each employee shall be protected in the exercise of such right. Section 7116(a)(1) establishes that it is unlawful for an agency to interfere with, restrain or coerce any employee in the exercise of any right under the Statute, including the right delineated in Section 7102. Early on under the Order, it was established that protected activity could not be considered or referenced, even non-judgmentally, in connection with performance discussions. In Naval Facilities Engineering Command and AFGE Local 2623, 3 A/SLMR 209 (1973), a case in which the phrase "active in the union" was placed on an employee's appraisal form, the Assistant Secretary stated: "If the right to engage freely in union activities has any significant meaning, an employee should have the right to expect that such a factor forms no part of his appraisal." Naval Facilities, Id., at 218. Accordingly, the Assistant Secretary ordered the Respondent to expunge any reference to union activities from the employee's file, and ordered the Respondent to instruct its supervisors not to insert any remark or comment in an appraisal form or reference letter regarding the union activities of any employee. See also, IRS, Wilmington District and NTEU, 6 A/SLMR 335 (1975). Similarly, oral communications by a manager which created a nexus between performance of promotion potential and protected activity were also unlawful under the Order. In U.S. Customs Service, Miami, Florida, 6 A/SLMR 695, Supplement 6 A/SLMR 259, 261, statements implying union activity was a "negative factor" in a performance rating were found to be violative. In so holding the Assistant Secretary adopted the Administrative Law Judge's statement that: "It is apparent that any threats to employees, express or implied, in respect to their union activities will have a restraining effect upon such employees and will constitute an unfair labor practice." U.S. Customs, Id., at page 261. A similar holding was indicated in U.S. Tank Command, Warren, Michigan, 4 A/SLMR 742 (1974). See also, IRS, Detroit Data Center and NTEU, 7 A/SLMR 554 (1977), wherein questioning a steward during a promotion interview regarding the extent to which she was taken from her job duties to engage in protected activity was found to be coercive, and hence, unlawful. The Assistant Secretary adopted the finding that " . . . The right to engage in union activities would be seriously jeopardized if employees were interrogated about the relationship between union activity and work performance." Id., at pages 558-559. These cases arising under Section 19(a)(1) of the Executive Order advance principles equally valid under Section 7116(a)(1) of the Statute. There should be no doubt that the Statute is designed, as was the Executive Order, to protect employees from statements suggesting any relationship between an employee's protected activity and that employee's present or future employment status with an agency. To the extent that any of the statements made herein suggest such a nexus they are violative of Section 7116(a)(1) of the Statute. It is my opinion, and I find, that the statements made by Respondent's agents Johnson and Smith occurred in separate and distinct incidents and were not part of any plan or design. In chronological order, these statements are as follows: A. Joyce Johnson's July 2, 1981 statement to Union steward Denise Chun that the time she spent on Union activities was impacting on her service to the public. Although this statement was made after completion of a labor-management discussion, it nevertheless was a criticism of Chun's performance directly related to her activities as a Union steward. On the one hand, Johnson had approved Chun's requests for official time, but at the same time she was attempting to intimidate Chun into reducing the time she spent in Union activities. In my opinion, Johnson's statement constitutes an informal appraisal of Chun's work performance which, because it contains a nexus between performance and protected activity, is unlawful. Accordingly, I find this statement to be a violation of Section 7116(a)(1). /7/ B. Joyce Johnson's July 22, 1981, statement to Union steward Chun, during the course of a labor-management relations meeting, that Chun's rank and position were the result of the time she spent engaging in Union activity and that Chun was not likely to get ahead or be promoted within the agency as long as she continued to engage in Union activity, and that a promotion was unlikely until she reduced her Union activity and her use of official time. In my opinion, Johnson's statements that Chun's current position and future lack of promotability are based on the level of Union activity in which she is engaged, amount to the very type of illegal nexus found in the above-cited cases. Accordingly, I find these statements violate Section 7116(a)(1). C. Joyce Johnson's September 11, 1981 statement to Chun, that Johnson had just read Chun's 20-page audit and wasn't Chun embarrassed that it was so poor and that Chun had not been performing as a Service Representative. In my opinion, Johnson's statement, standing above, does not provide a nexus between her Union activity and her work performance. Had the same statement been made during a performance appraisal interview it would have been lawful. The fact that Chun was in Johnson's office on another matter, involving labor-management business does not, in and of itself, provide sufficient nexus to make the statement unlawful. Nor do I agree with the General Counsel that Respondent was engaged in a "systematic and continuing assault" of which this incident was merely one part. D. Joyce Johnson's October 7, 1981, statement to Chun immediately prior to Chun's departure for Union training (about which Johnson was aware), that Chun was not performing well as a Service Representative as she was always engaged in Union activities. Clearly, Johnson seemed to resent the fact that Chun, who spent an excessive amount of her time on Union activity, would be absent from the office for Union training. Johnson's frustration prompted her to call Chun on the telephone and vent her true feelings to the effect that Chun's activities were of dubious value to the Agency. In my opinion, Johnson's accusation that there was a relationship between Chun's Union activities and her performance as a Service Representative, provides the necessary nexus to make such statement unlawful, and therefore, a violation of Section 7116(a)(1). E. Denise Smith's October 14, 1981 statement to Chun, during the course of a labor-management relations meeting, that Chun's Union activities and the time she spent on official time accounted for her poor appraisal; and that Chun ought to learn to be more selfish and concerned with her career in the agency rather than with other people's rights. Smith's statement was made during a meeting in which Chun was officially being told that future requests for official time had to be approved in advance. Clearly, Smith had a right to require compliance with the Agreement. Smith's mistake was to introduce the subject of Chun's performance appraisal and her career with the Agency, and tie these together with Chun's use of official time for Union activities. By so doing, Smith provided what has been referred to herein as the nexus between one's work performance and one's statutorily protected right to be engaged in Union activities. Accordingly, Respondent violated Section 7116(a)(1) by Smith's statements. Based on the foregoing, I conclude that the General Counsel has established by a preponderance of the evidence that Respondent's agents made numerous statements to Union steward Denise Chun which impinged on her freedom to engage in protected activity, and which are clearly incompatible with the protections afforded by Section 7102 of the Statute. The effect of such statements is to interfere with, restrain, and coerce Denise Chun in the exercise of her statutory right to engage in protected activity. Accordingly, I conclude that Respondent violated Section 7116(a)(1) by the statements of its agents herein. Having found that Respondent violated Section 7116(a)(1) of the Statute, I recommend that the Authority remedy this violation by the issuance of the following: ORDER Pursuant to Section 7118 of the Federal Service Labor-Management Relations Statute and Section 2423 of the Rules and Regulations of the Federal Labor Relations Authority, it is hereby ordered that Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing Denise Chun, in the exercise of her duties as a steward of American Federation of Government Employees, AFL-CIO, by making statements to Denise Chun directly relating (1) the quality of her job performance, (2) her potential for promotion, and (3) her concern for other employees, to her activities as an AFGE steward. (b) In any like or related manner, interfering with, restraining, or coercing AFGE steward Denise Chun, or any other employee, in the exercise of rights guaranteed by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purpose and policies of the Statute: (a) Post at its Region IX, San Francisco Sutter Street offices, in conspicuous places where notices to employees are customarily posted, 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 a representative of Department of Health and Human Service, Social Security Administration, Baltimore, Maryland, and shall be posted for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Acting Regional Director of Region IX of the Federal Labor Relations Authority whose address is: 530 Bush Street, Suite 542, San Francisco, California 94108, in writing, within 30 days from the date of this Order as to the steps it has taken to comply herewith. FRANCIS E. DOWD Administrative Law Judge Dated: September 9, 1982 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 WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT interfere with, restrain, or coerce Denise Chun, in the exercise of her duties as a steward of American Federation of Government Employees, AFL-CIO, by making statements to Denise Chun directly relating (1) the quality of her job performance, (2) her potential for promotion, and (3) her concern for other employees, to her activities as an AFGE steward. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce AFGE Steward Denise Chun, or any other employee in the exercise of rights guaranteed by the Federal Service Labor-Management Relations Statute. (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 question concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of Region IX of the Federal Labor Relations Authority whose address is: 530 Bush Street, Suite 542, San Francisco, California 94108 and whose telephone number is (415) 556-8105. /1A/ See U.S. Department of Interior, Office of the Secretary, U.S. Government Comptroller for the Virgin Islands, 11 FLRA No. 91 (1983), wherein the Authority, in reversing the Judge in part, concluded that management's remark in the Union President's performance appraisal pertaining to his protected action violated section 7116(a)(1) by infringing on his right to engage in protected activity and to freely present the views of the Union without fear of Penalty or reprisal pursuant to section 7102 of the Statute. --------------- FOOTNOTES$ --------------- /1/ The Consolidated Complaint also contained allegations concerning Case No. 9-CA-20025 which was withdrawn by order of the acting Regional Director on February 22, 1982. Case No. 9-CA-2005 is therefore not a part of this proceeding. /2/ Counsel for the General Counsel submitted an excellent and well-organized brief containing proposed findings of fact, conclusion of law, order, and notice to employees. After carefully reviewing the entire record, I have decided to adopt, with minor modifications, these proposed findings and conclusions. /3/ The practice, at least with respect to Chun, was at variance with an agreed-upon procedure set forth in Respondent's Exhibit No. 1, a clarification of contract Article 11 dealing with "Use of Official Time." /4/ I credit Johnson over Chun with respect to who brought up the subject of law school, but with respect to the remainder of the conversation, I have to credit Chun. /5/ Johnson admits that this is how she felt, but denies telling Chun how she felt. /6/ Smith, whose testimony I am unable to credit, testified that her conversation with Chun was confined to use of official time. On direct examination she did not even state the purpose of the discussion which was to require Chun to adhere to the contract provisions requiring advance approval of official time. Smith denied knowing about Chun's performance on a Service Representative of discussing her performance with her. Chun's testimony is more plausible and believable. /7/ However, I find no violation of Section 7116(a)(1) with respect to the statement by Johnson made earlier on July 2 in which she suggested that Chun might want to work for the Union or transfer to a smaller office where the demands of her job and her Union activities would enable Chun to fit law school into her already very busy schedule. This statement occurred after completion of the labor-management discussion and the conversation was initiated by Chun. Johnson's response, made in this particular setting, and absent any nexus to her work performance was not unlawful.