12:0667(132)CA - HHS, SSA, Baltimore, MD and AFGE -- 1983 FLRAdec CA



[ v12 p667 ]
12:0667(132)CA
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 sche