13:0283(46)CA - VA Medical Center, Buffalo, NY and Marlene K. Bess -- 1983 FLRAdec CA



[ v13 p283 ]
13:0283(46)CA
The decision of the Authority follows:


 13 FLRA No. 46
 
 VETERANS ADMINISTRATION MEDICAL CENTER
 BUFFALO, NEW YORK
 Respondent
 
 and
 
 MARLENE K. BESS, AN INDIVIDUAL
 Charging Party
 
                                            Case No. 1-CA-20256
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  The General Counsel
 filed exceptions to the Judge's Decision and the Respondent filed a
 brief in opposition to the exceptions.
 
    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, the Authority hereby adopts the
 Judge's findings, conclusions, and recommendation that the complaint be
 dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 1-CA-20256 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., September 30, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 1-CA-20256
 
    M. Melissa Baltz, Esquire
       For the Respondent
 
    Carol Waller Pope, Esquire
       For the General Counsel
 
    Ms. Marlene K. Bess
       For the Charging Party
 
    Before:  LOUIS SCALZO
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose as an unfair labor practice proceeding under the
 provisions of the Federal Service Labor-Management Relations Statute, 92
 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter called "the Statute"),
 and the Rules and Regulations issued thereunder.
 
    The complaint, as amended at the hearing, alleged that on or about
 April 23, 1982, Respondent through its representatives failed to select
 the Charging Party for the position of WG-01 Housekeeping Aide because
 she asserted that a vacancy announcement advertising the position had
 not been drafted and posted in accordance with the requirements of a
 collective bargaining agreement negotiated by the Respondent and the
 Service Employees' International Union, Local 200.  It was further
 alleged :  that the conduct described constituted unfair labor practices
 within the purview of Sections 7116(a)(1) and (2) of the Statute.
 
    Counsel representing the Respondent argues that the complaint should
 be dismissed because representatives of Respondent participating in the
 selection process were unaware of the existence of any protected union
 activity;  because there was no showing of anti-union animus involved in
 the selection process;  and because the selection made by the Respondent
 would have been made even in the absence of any alleged protected
 activity.
 
    The parties were represented by counsel during the hearing and were
 afforded full opportunity to be heard, adduce relevant evidence, and
 examine and cross-examine witnesses.  Based upon the entire record
 herein, including my observation of the witnesses and their demeanor,
 the exhibits and other relevant evidence adduced at the hearing, and
 briefs filed by the parties, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
  Application Submitted by Charging Party for Housekeeping Aide Position
 
    The record disclosed that the vacancy was created by the departure of
 a WG-1 Housekeeping Aide serving a 12:00 p.m. to 8:00 a.m. shift in the
 Respondent's Building Management Service (Tr. 57).  Mr. John Alderson,
 Chief of the Building Management Service, contacted the Respondent's
 Personnel Service and advised that he wanted to fill the vacancy (Tr.
 52).  Ms. Donna Tuttle, a personnel staffing specialist in the Personnel
 Service handled the request.  She learned from Mr. Alderson that the
 person selected to fill the vacancy would probably work a day shift
 initially;  but that eventually it would be a 12:00 p.m. to 8:00 a.m.
 shift (Tr. 50).  Because of this uncertainty Ms. Tuttle included the
 following caveat in the job announcement:
 
          NOTE:  This is a full-time position.  TOUR OF DUTY:  Monday
       thru Friday, 7:00 am - 3:30 pm.  The tour of duty for this
       position may be subject to change dependent upon the needs of the
       service (G.C. Exh. 9).
 
    The wording was proposed by Ms. Tuttle because of the imminent
 possibility of a change in the tour of duty (Tr. 50).  It was
 established that it was not unusual to insert such a caveat in
 announcements and that it was routine for this particular position
 because it involved shift work (Tr. 42-43).  /1/ It was merely
 anticipated that the day shift identified in the announcement would be
 assigned for "at least, some period of time." (Tr. 43).
 
    The vacancy announcement also included a description of the job
 duties involved (Tr. 85).  It was posted on March 29, 1982, under the
 provisions of a governing Merit Promotion Plan (Tr. 45-46, G.C. Exh. 3).
  Ms. Bess decided to apply for the job, and submitted an application
 (G.C. Exh. 5, Tr. 20).  At the time she was a steward for Local 200, and
 during the period 1977 until May of 1980, she had served as Secretary of
 the Local (Tr. 18).  As a Union representative she had attended meetings
 with various management officials, and had sat in on negotiations
 involving the Merit Promotion Plan Tr. 18, 21).  /2/
 
    Under Merit Promotion Plan procedure in effect, applications for the
 position were rated by a Panel consisting of a Personnel Service
 representative, and supervisors.  A representative of Local 200
 participated as an observer (G.C. Exh. 3, Tr. 22).  The Panel considered
 supervisory appraisal forms, questionnaires filled out by applicants,
 and official personnel folders relating to each applicant.  A numerical
 rating was assigned to each candidate.  In this case six applicants were
 assigned, a "most highly qualified rating," with scores of 70 or higher,
 and an alphabetical list of their names, without reference to their
 individual scores, was sent to Mr. Alderson, the selecting official.
 (R. Exh. 1, Tr. 46).  /3/ Materials reviewed by the Panel in the rating
 process were also forwarded.  Interviews of the employees referred were
 scheduled in alphabetical order with Ms. Bess being first.
 
    Interview of Ms. Bess
 
    Ms. Bess was interviewed by Mr. Brian Semeraro, Assistant Chief,
 Building Management Service, on April 23, 1982 (Tr. 23-24).  /4/ His
 initial perception of her was that of one highly qualified to perform
 the work (Tr. 69).  He inquired concerning the reasons relating to her
 wanting the position (Tr. 24, 65, 72-73).  She replied that she was
 interested in the pay, and that she considered herself qualified (Tr.
 24, 66, 72).  He explained that the candidate selected would undergo a
 period of orientation for a one week period during a 7:00 a.m. to 3:30
 p.m. daytime shift, and that the job would then be assigned to a
 midnight to 8:00 a.m. shift (Tr. 24, 59-60, 70, 73).  /5/ Ms. Bess asked
 if Mr. Semeraro was certain about this and he assured her that he was
 (Tr. 60).
 
    Ms. Bess expressed surprise and dissatisfaction, and inquired
 concerning the time when the decision was made to recruit for the
 midnight to 8:00 a.m. shift (Tr. 24, 70, 73).  She also advised Mr.
 Semeraro that he had no right to recruit for the midnight shift (Tr.
 73).
 
    Mr. Semeraro explained that the decision had been made "several days
 ago," and that he had confirmed the fact by checking with Mr. Alderson
 that morning (Tr. 70).  /6/ He invited her attention to the fact that
 the vacancy announcement carried the caveat that "the tour of duty for
 this position may be subject to change dependent upon the needs of the
 service." (Tr. 25).  Ms. Bess stated that she was aware of this (Tr.
 25), and then pointed out that if the tour of duty was changed in the
 future Respondent would have to comply with the seniority provision of
 the governing collective bargaining agreement (Tr. 25).  /7/ She also
 expressed her opinion that if a midnight to 8:00 a.m. tour of duty was
 created then the vacancy announcement would have to be amended
 appropriately and posted again before a selection could be made (Tr.
 25-26).  /8/
 
    She informed Mr. Semeraro that if she was not selected for the
 position she would alert the individual selected concerning their rights
 under the seniority provision of the collective bargaining agreement
 (Tr. 26, 60, 73).  Ms. Bess insisted on discussing with Mr. Semeraro the
 applicability of the seniority provision if she were selected for the
 job;  and he clearly indicated that he wished to continue with her
 interview to determine her suitability and qualifications for the job
 (Tr. 72-73).  He explained that he was not there to discuss the
 provisions of the contract, or to debate such issues with her (Tr. 60,
 72-73).  Ms. Bess conveyed the impression that she did not, under the
 circumstances, want to continue the interview (Tr. 70).  Mr. Semeraro
 did not react to the request for him to take a position on behalf of the
 Respondent on the seniority issue presented by Ms. Bess, and did not
 otherwise discuss the matter with her.  There was no indication or
 suggestion that the seniority provision would not be honored by the
 Respondent (Tr. 30-31).
 
    Ms. Bess informed Mr. Semeraro that she was not interested in the job
 any longer, and that she would not accept the job (Tr. 25, 60-61, 73).
 She also advised him that she would discuss the matter with Mr.
 Alderson, Chief of Building Maintenance Service, and with Mr. Robert
 Westfall, head of Personnel Service (Tr. 25, 60).  Mr. Semeraro did not
 respond to her statements concerning these intentions (Tr. 25).  Ms.
 Bess clearly indicated that she was not interested in the 12:00 midnight
 to 8:00 a.m. shift (Tr. 85), and terminated the interview when Mr.
 Semeraro continued his refusal to discuss the seniority provision of the
 collective bargaining agreement, and the potential future impact on the
 successful applicant as a result of the anticipated future change in the
 tour of duty (Tr. 73).
 
    Grievance Brought to Attention of Personnel Service
 
    In accordance with procedure provided in the Merit Promotion Plan,
 Ms. Bess contacted Mr. Westfall, the Personnel Officer, as the
 appropriate person to see about the matter after leaving the interview
 (Tr. 26, 31-32, 38).  /9/ Accompanied by a Union representative she met
 with Mr. Westfall and Ms. Tuttle about the matter after she left Mr.
 Semeraro (Tr. 26-27, 49).  /10/
 
    Ms. Bess complained that she was surprised and upset over Mr.
 Semeraro's statement that the job opening would not be assigned a
 permanent daytime tour of duty (Tr. 27, 38, 50).  She insisted that the
 job had been falsely advertised, and that the vacancy announcement
 should be canceled and reissued (Tr. 32, 50).  She informed that she was
 not at all interested in working the midnight to 8:00 a.m. shift, and
 that she would not have applied for the job had she known that it was
 going to be assigned to a night shift (Tr. 27, 32-33, 38-39).  She
 informed Mr. Westfall and Ms. Tuttle that she left the interview because
 she was so upset over what she perceived as a change (Tr. 38).  Ms. Bess
 inquired of Mr. Westfall whether they would take action on her
 complaint, and noted that she had told Mr. Semeraro that she did not
 want the job (Tr. 28).
 
    Mr. Westfall examined the vacancy announcement and noted that it did
 say that the shift was subject to change, and that the candidate
 selected would have had notice of risks associated with a change in the
 tour of duty (Tr. 39).  After considering withdrawal of the vacancy
 announcement, Mr. Westfall and Ms. Tuttle informed Ms. Bess that the
 vacancy announcement would stand as it was, and that if it was necessary
 for an employee to be assigned to the night shift, the assignment would
 be effected in accordance with the seniority provision of the collective
 bargaining agreement or reannounced (Tr. 28, 39, 44, 50-52).  It was
 pointed out to her that she would probably not have had to go on the
 night shift because of her seniority status (Tr. 39-40, 50).
 
    At this point Ms. Bess became interested in the position again
 inasmuch as it had the potential of a transfer to the new job with a
 daytime tour of duty (Tr. 33-34, 40).  She was only interested in the
 job if she could be assured that it would be a daytime tour of duty (Tr.
 33).  She recognized that if the position were reannounced for a 12:00
 p.m. to 8:00 a.m. tour of duty she would have no opportunity to be
 selected for a daytime tour of duty.  In the light of these
 circumstances she announced that she had decided not to withdraw her
 name from consideration, but would return to Mr. Semeraro and let him
 know that she was still interested in the position (Tr. 40).  It was
 clear from the record that Mr. Westfall and Ms. Tuttle endeavored to
 respond to Ms. Bess in a manner which would result in Ms. Bess being
 considered for the job with some prospect of realizing her desire for a
 daytime shift.  She was advised by Mr. Westfall to return to Mr.
 Semeraro to inform him of her interest, but was asked to not tell him of
 her meeting with Mr. Westfall and Ms. Tuttle (Tr. 28, 36).  Ms. Tuttle
 stated that Ms. Bess should have Mr. Semeraro phone Ms. Tuttle if he had
 any questions (Tr. 34).  Ms. Bess testified that before leaving she told
 Mr. Westfall and Ms. Tuttle that she was not "holding anything over
 anyone's head, but if (she) didn't receive the job, (she) would file an
 unfair labor practice (charge) because . . . rights under the contract
 had been violated." (Tr. 28, 51).
 
    Ms. Bess went to Mr. Semeraro's office, and in his absence she left a
 note saying, "I have changed my mind.  I wish to be considered for the
 position.  If you have any questions call Donna Tuttle." (Tr. 29, 36,
 60-61).  Mr. Semeraro did phone Ms. Tuttle and referred to the content
 of Ms. Bess' note, and asked what was happening (Tr. 51, 61).  Ms.
 Tuttle advised that Ms. Bess had changed her mind, and that she wanted
 to be considered as a candidate for the position (Tr. 51, 55).  He was
 instructed to consider her along with other candidates (Tr. 53).  The
 matter was not discussed further with Mr. Semeraro at that time, or
 before selection of a candidate for the job (Tr. 29, 51, 55-56, 61);
 and representatives of Personnel Service did not thereafter discuss Ms.
 Bess' complaints with Building Management Service (Tr. 40-42, 94).
 
    The Selection
 
    Following completion of all the job interviews, and after being
 advised that Ms. Bess wished to be considered after all, Mr. Semeraro
 decided not to recommend Ms. Bess as a candidate because he determined
 that she did not have a positive job attitude (Tr. 74-75, 79-80).  His
 reason for reaching this conclusion was based in part on the fact that
 Ms. Bess refused to participate in the job interview scheduled for her
 (Tr. 79-80).  He testified that he wanted to conduct the interview, but
 that she insisted they discuss what she perceived as a violation of the
 collective bargaining agreement (Tr. 79-80).  From her insistence upon
 focusing on issues other than the requirements of the job he
 subjectively determined that she lacked interest in the job itself (Tr.
 79-80).  He summarized his conclusion by saying, "We were not in line."
 (Tr. 79).  His testimony included the following statements indicative of
 his reasons for concluding that she did not possess a positive job
 attitude:
 
          She gave the impression again she wanted to talk about a Union
       issue . . . I felt . . . that point could have been discussed
       later on.  . . . I wanted to conduct an interview regarding (the)
       Housekeeping Aide position (Tr. 80).
 
          . . . .
 
          I did not feel Ms. Bess was listening as to what I wanted to
       discuss and the discussion she was bringing about was not relative
       to that particular time (Tr. 81).  /11/
 
    It was also established that Ms. Bess was eliminated by Mr. Semeraro
 because Michael Honan exhibited an impressive work attitude toward the
 position being filled (Tr. 62, 75, 88-89).  He determined that his
 responses reflected enthusiasm about specific elements of the job itself
 (Tr. 76-77), and that his positive attitude was reflected in statements
 about what he would do if selected (Tr. 81).
 
    Mr. Semeraro informed Mr. Alderson what had occurred during his
 interview with Ms. Bess, and noted that she had declined the position,
 but had thereafter asked to be considered (Tr. 89-90, 97).  He said that
 her evaluation was good, and that she had prior experience (Tr. 89-90).
 Mr. Semeraro discussed each of the other five candidates with Mr.
 Alderson in a similar manner, and then recommended that Michael Honan be
 selected to fill the vacancy (Tr. 87-89, 92-94, 96).  The selection was
 finally made by Mr. Alderson, as Chief of Building Maintenance Service,
 on the basis of the recommendation of Mr. Semeraro, and documents
 received by Mr. Alderson for evaluative purposes.  On April 26, 1982, he
 signed a promotion certificate indicating that he had selected Michael
 Honan (Tr. 14-15, R. Exh. 1).  /12/ There was no evidence of improper
 contact between anyone in Personnel Service with either Mr. Alderson or
 Mr. Semeraro during the selection process.
 
                        Discussion and Conclusions
 
    In order to establish a violation of Section 7116(a)(2) there must be
 a showing that the alleged discriminatee was engaged in protected
 activity, that the Respondent had knowledge of such activity, and lastly
 that the Respondent took action against the discriminatee because of
 anti-union animus.  Veterans Administration Center, Leavenworth, Kansas,
 1 FLRA No. 111, 1 FLRA 977 (September 20, 1979);  United States
 Department of Labor, 1 FLRA No. 120, 1 FLRA 1054 (September 28, 1979);
 Internal Revenue Service, Washington, D.C., 8 FLRA No. 95, 8 FLRA 440
 (April 30, 1982);  Department of the Treasury, United States Customs
 Service, Region IV, Miami, Florida, 8 FLRA No. 109, 8 FLRA 561 (May 13,
 1982).  The element of discriminatory motivation needed to establish a
 Section 7116(a)(2) violation may be inferred from circumstantial
 evidence.  Veterans Administration Center, Leavenworth, Kansas, supra;
 Department of the Treasury, United States Customs Service, Region IV,
 Miami, Florida, supra.  /13/ Section 2423.18 of the Rules and
 Regulations, 5 C.F.R. 2423.18, provides that the General Counsel "shall
 have the burden of proving the allegations of the complaint by a
 preponderance of the evidence."
 
    With respect to the first two elements needed to establish a
 violation of Section 7116(a)(2), it is noted that Section 7103(a)(9) of
 the Statute defines the word "grievance" in pertinent part as follows:
 
          (9) 'grievance' means any complaint
 
          (A) by any employee concerning any matter relating to the
       employment of the employee;
 
                                .  .  .  .
 
          (C) by any employee, labor organization, or agency concerning -
 
          (i) the effect or interpretation, or a claim of breach, of a
       collective bargaining agreement . . .
 
    It is clear that Ms. Bess was interposing a "complaint" of the type
 described in Section 7103(a)(9) when she complained to Mr. Semeraro and
 Mr. Westfall;  and further that both Mr. Semeraro and Mr. Alderson were
 at least aware of the complaint addressed to Mr. Semeraro.  The fact
 that it was initially brought up in the wrong forum, or before the wrong
 representative of the Respondent, would not operate to divest the
 complaint of its status as a "grievance" within the meaning of Section
 7103(a)(9).  Moreover, the mere circumstance that it was not designated
 as a grievance when initially articulated by Ms. Bess, would not mean
 that her complaint was any less a grievance in a definitional sense.
 Department of the Treasury, Internal Revenue Service, Louisville
 District, 11 FLRA No. 64, 11 FLRA 290 (February 10, 1983);  Internal
 Revenue Service, Fresno Service Center, Fresno, California, 7 FLRA No.
 54, 7 FLRA 371 (December 18, 1981);  Department of the Treasury,
 Internal Revenue Service, Chicago District Office, Chicago, Illinois,
 A/SLMR No. 748, 6 A/SLMR 629 (1976), FLRC No. 76A-156, 5 FLRC 391
 (1977).  /14/
 
    However, despite the foregoing, the record does not show by a
 preponderance of the evidence that Ms. Bess' application was rejected
 because of anti-union animus.  As noted, such a showing is essential.
 Veterans Administration, Veterans Administration Medical Center,
 Fayetteville, Arkansas, 9 FLRA No. 123, 9 FLRA 902 (August 6, 1982);
 Department of Health, Education and Welfare, Region VIII, Denver,
 Colorado, Social Security Administration, Denver District, Denver,
 Colorado, 6 FLRA No. 110, 6 FLRA 628 (September 21, 1981);  Community
 Services Administration, 6 FLRA No. 109, 6 FLRA 616 (September 21,
 1981);  Department of the Navy, Portsmouth Naval Shipyard, 6 FLRA No.
 94, 6 FLRA 491 (August 31, 1981).  Instead, it appears that Ms. Bess was
 not selected because Mr. Semeraro perceived a lack of interest on her
 part in her refusal to discuss job duties during the interview, and
 because of an observed superior job attitude in the candidate selected.
 
    Mr. Semeraro's conclusions concerning Ms. Bess were based in part
 upon Ms. Bess' reluctance to participate in the job interview, and not
 upon discriminatory motivation associated with her interposing arguments
 relating to the applicability of the collective bargaining agreement to
 the selection process.  The record disclosed that the latter element was
 merely a fortuitous circumstance.  There was no evidence adduced to show
 that Mr. Semeraro or Mr. Alderson had ever exhibited anti-union animus
 in the past, or that prior relations with Ms. Bess or Local 200 were
 strained in any way.  Proof of Ms. Bess' complaints and subsequent
 nonselection, without more, does not automatically suffice to establish
 such animus.
 
    Ms. Bess changed the subject and nature of the job interview shortly
 after it began.  What commenced as one of a series of job interviews
 with Mr. Semeraro asking job-related questions, was transformed into a
 confrontation with Mr. Semeraro and an interrogation of him by Ms. Bess.
  This stemmed from her belief that the vacancy announcement was
 defective, and from her opinion that a possible breach of the seniority
 provision of the collective bargaining agreement might subsequently
 occur following the week long orientation period preceding the
 anticipated change in the temporary day shift tour of duty to a midnight
 to 8:00 a.m. tour of duty.  /15/ This confrontation was neither
 anticipated nor desired by Mr. Semeraro.  He did not consider it
 appropriate to respond to her demands for resolution of her complaints.
 
    Ms. Bess was insisting that Mr. Semeraro temporarily abandon his task
 of interviewing candidates and participate in a negotiating session
 relating to the validity of the vacancy announcement, and the meaning of
 the seniority provision in the contract.  She sought a commitment from
 him, as a representative of the Respondent, on these issues.  The record
 made it clear that Mr. Semeraro was not the appropriate person to
 determine such issues, and although he might conceivably have had some
 authority to aid in resolving questions posed by Ms. Bess, there was no
 reason for questioning his reluctance to do so within the context of a
 job interview pertaining to the Housekeeping Aide position.  In fact the
 record clearly established that grievances of this nature were
 appropriately raised only before her immediate supervisor, the next
 supervisory level, or the Personnel Officer.  /16/
 
    Mr. Semeraro made it clear that he did not think the subjects raised
 by Ms. Bess were appropriate.  As noted, his reason for rejecting her
 application did not stem from the substance of Ms. Bess' grievance
 concerning alleged breaches of the contract, but rather because he was
 reacting to her obstruction of the job interview process.  It is logical
 to assume that he would have drawn similar conclusions had Ms. Bess
 raised issues involving other subjects not related to the business of
 interviewing job applicants to determine job qualifications.
 
    Although an effort was made to attribute an anti-union motive to
 explanations relating to the formulation of the decision to reject Ms.
 Bess, a careful evaluation of the record discloses proof of legitimate
 reasons for the determinations made, and an absence of a showing, by a
 preponderance of the evidence, that Ms. Bess' application was rejected
 because of complaints initiated in her discussion with Mr. Semeraro, and
 repeated later to Mr. Westfall and Ms. Tuttle.
 
    Upon the basis of the foregoing, it is recommended that the Authority
 issue the following order pursuant to 5 C.F.R. 2423.29(c).
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the complaint in Case No. 1-CA-20256, be,
 and it hereby is, DISMISSED.
 
                                       LOUIS SCALZO
                                       Administrative Law Judge
 
 Dated:  March 24, 1983
          Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Employees in Building Management Service were routinely assigned
 to one of three shifts dividing the work day (Tr. 24).
 
 
    /2/ In addition to her familiarity with the provisions of the Merit
 Promotion Plan, Ms. Bess had also served as a Union member of several
 rating panels convened in accordance with the provisions of the Plan
 (G.C. Exh. 3, Tr. 21).
 
 
    /3/ Those responsible for the selection in this case were not aware
 of individual scores prior to selection and the scores were not
 considered by the selecting official.  Although all six candidates were
 assigned "most highly qualified" ratings, the marks ranged from a low of
 70.3 to a high of 81.2.  Ms. Bess was second highest with a score of
 80.9.  The applicant selected, Michael Honan, was assigned the lower
 score of 70.3.
 
 
    /4/ All six applicants were interviewed by Mr. Semeraro during the
 morning of April 23rd (Tr. 74).
 
 
    /5/ All applicants interviewed were advised of this development (Tr.
 61-62, 74).
 
 
    /6/ Ms. Bess testified that Mr. Semeraro said the decision had been
 made "that Thursday." She testified that she received the impression
 that this meant April 22, 1983, or the day before the interview (Tr.
 24).  However, it is clear from other testimony that the decision had
 been reached, in large measure, at the time of posting the vacancy
 announcement on March 29, 1982.  Even assuming Ms. Bess' recollection to
 be accurate there is no reason to assume words attributed to Mr.
 Semeraro by Ms. Bess were inconsistent with the account given by Mr.
 Semeraro at the hearing.
 
 
    /7/ Article 20, Section 7 of the agreement provided:  "Senior
 employees shall be given preference in selection of shifts in all
 Services and scheduling of all shifts will be made in a fair and
 equitable manner." (G.C. Exh. 2 at pg. 30).
 
 
    /8/ Ms. Bess was relying upon her personal interpretation of Article
 26, Section 3 of the agreement which provided:  "All job vacancy
 announcements shall be conspicuously posted for at least one week and
 shall list the rating factors and maximum allowance for each factor.  A
 copy shall be furnished to Local 200 and each steward." (G.C. Exh. 2).
 
 
    /9/ The Merit Promotion Plan provided both formal and informal
 grievance procedures.  The informal procedure referred to the employee's
 immediate supervisor as an appropriate person to contact initially for
 the purpose of discussing grievances relating to the administration of
 the Plan.  Alternatively, the employee was permitted to go directly to
 either the supervisory level above the employee's immediate supervisor,
 or to the Personnel Officer (Tr. 35, G.C. Exh. 3 at pg. 12).  Ms. Bess
 acknowledged that it would have been inappropriate to raise the
 grievance before other officials (Tr. 31-32).  She noted that the matter
 did not involve her own immediate supervisor in any way (Tr. 32).  Mr.
 Semeraro did not supervise Ms. Bess.
 
 
    /10/ The meeting lasted about 15 minutes (Tr. 54).
 
 
    /11/ It was established that Mr. Semeraro had an established
 procedure of asking applicants a series of questions about a job (Tr.
 60, 66, 78, 79).  Interviews lasted about five to ten minutes (Tr. 66).
 A careful reading of the record disclosed that Ms. Bess' insistence upon
 discussing issues of interest to her, but unrelated to Mr. Semeraro's
 concerns, resulted in the frustration of Mr. Semeraro's method of
 conducting the job interview.
 
 
    /12/ By letter dated April 28, 1982 Mr. Westfall advised Ms. Bess
 that she was qualified and referred for consideration, but that she was
 not selected (G.C. Exh. 10).
 
 
    /13/ Proof of anti-union animus is not essential in order to
 establish an independent violation of Section 7116(a)(1).  See Naval Air
 Rework Facility, Marine Air Station, Cherry Point, North Carolina, 1
 FLRA No. 85, 1 FLRA 754 (July 17, 1979).  In the context of this case
 there was no independent evidence of interference, restraint, or
 coercion caused by the Respondent's representatives as a result of
 complaints voiced by Ms. Bess to Mr. Semeraro and to Mr. Westfall.
 
 
    /14/ But see National Labor Relations Board, Region 7, Boston,
 Massachusetts, 5 FLRA No. 87 (May 15, 1981), an Executive Order case,
 for a holding that a union official's unilateral unwarranted voicing of
 complaints relating to his own and others' concerns about working
 conditions, would not, without more, automatically create protected
 union activity.  It was observed that such a holding would allow a union
 steward or any other union official to insulate themselves from
 disciplinary action by merely raising complaints about working
 conditions in response to supervisory action which met with their
 personal displeasure.
 
 
    /15/ It is noted that the caveat in the vacancy announcement put Ms.
 Bess on notice that a shift change would probably occur.  Thus, she had
 prior knowledge of the possible applicability of the seniority provision
 before the job interview.  Perhaps she was surprised by the short period
 of time that would elapse prior to the change.  However, she was
 apprised of the possibility and could have made inquiry concerning the
 procedure which would be employed to assign an employee to a different
 shift.  Mr. Semeraro was merely bringing her up to date on developments
 concerning the position.  It was still a daytime shift as announced, if
 only for a one-week period.  Furthermore, there was no reason to
 conclude that the collective bargaining agreement would be breached by
 the Respondent.
 
    Her contention concerning the fairness of the vacancy announcement
 involved her perception of the meaning of Article 26, Section 3 of the
 agreement.  The record does not disclose any defect in the announcement
 based upon this contractual provision, nor was the vacancy announcement
 shown to be otherwise defective.  Arguably, it could have been more
 specific;  however, no basis for reissuance was shown.
 
 
    /16/ It can be argued that resolution of Ms. Bess' complaints by Mr.
 Semeraro, would have usurped authority reposed in other management
 officials by the Merit Promotion Plan and the collective bargaining
 agreement.  At a minimum there was ample justification for Mr.
 Semeraro's refusal to resolve questions, and there was an adequate basis
 for his concluding that her insistence upon discussing unrelated issues
 exhibited a lack of interest in discussing the job.  Discussio