24:0851(82)CA - EEO Commission and Edgard Martinez -- 1986 FLRAdec CA



[ v24 p851 ]
24:0851(82)CA
The decision of the Authority follows:


 24 FLRA No. 82
 
 EQUAL EMPLOYMENT OPPORTUNITY 
 COMMISSION
 Respondent
 
 and
 
 EDGARD MARTINEZ
 Charging Party/Individual
 
                                            Case No. 3-CA-50243
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 to the attached decision of the Administrative Law Judge filed by the
 Respondent.  The General Counsel filed an opposition to the exceptions.
 The complaint alleged that the Respondent violated sections 7116(a)(1)
 and (2) of the Statute by discharging an employee because of his
 activity in filing grievances.  Additionally, the complaint alleged that
 the Respondent committed an independent violation of 7116(a)(1) by
 alluding to the employee's grievances in a Notice of Proposal to Remove
 to support a charge of disruptive and unprofessional conduct.  In
 disagreement with the Judge we find that the Respondent did not violate
 the Statute in discharging the employee.  However, we find that the
 Respondent did violate section 7116(a)(1) by alluding to the employee's
 grievances as support for the action in the Notice.
 
                           II.  Background Facts
 
    As the pertinent facts of this case are fully set forth in the
 Judge's Decision, they will be discussed only briefly.  During the
 summer of 1984, the employee, Martinez, became concerned about changes
 made by management in the manner in which he was required to perform his
 duties.  In reaction to these changes, Martinez filed four grievances
 under the applicable negotiated grievance procedure.  The first
 grievance was initiated on July 13, 1984, and the fourth grievance was
 initiated on September 25, 1984.  All of the grievances were denied by
 the Respondent with the last decision issuing on October 11, 1984.
 
    Martinez received a "Notice of Proposal to Remove" on October 12 and
 submitted a formal response on October 24.  On October 26 Martinez was
 notified of the Respondent's decision to remove him effective November
 2, 1984.  As more fully set forth in the Judge's decision, Respondent
 noted in essence in taking such action that:
 
          (1) Martinez had promoted racial strife among the staff and
       management in the Office of Review and Appeals by informing a
       former coworker that he received his promotion only because he is
       white, by encouraging a black employee to file an EEO complaint
       regarding her non-selection for the same promotion, and by making
       allegations that white employees have received more difficult case
       assignments.
 
          (2) Martinez had demonstrated disruptive, unprofessional
       conduct and made himself extremely difficult to supervise by
       seldom accepting assignments or taking directions without
       challenging authority.  A written reprimand issued September 10,
       1984, stated that in objecting to a priority assignment, Martinez
       flew into a rage, slammed the file on his desk, yelled at his
       supervisor so loudly that he was heard clearly several offices
       away, and refused to do more work (Tr 418-19, 425).  In addition,
       the written reprimand referred to other specific incidents of
       disrespect and hostile conduct occurring early in September as
       well as previous incident.  The concluding paragraph of the
       reprimand stated:  "(T)his hostile conduct of jumping to
       conclusions, making unfounded accusations, and consistently
       questioning direct supervisory instructions cannot be condoned."
       The Respondent also contended that Martinez abused the grievance
       process by continuing to demand information and submitting
       numerous memoranda necessitating interim answers on his pending
       grievances which occupied his supervisor's work time and prevented
       her from processing the cases submitted to her for approval.
 
          (3) Martinez had maintained a hostile attitude in dealings with
       management as demonstrated by his continuing failure to accept
       assignments or take direction without requiring the direction to
       be in writing, with specific instructions on how to deal with
       cases, by making untrue allegations at a general staff meeting
       that management assigned him almost nothing but merit cases, and
       by being extremely abusive, loud and disrespectful toward the
       Director in public on one occasion.
 
    See Administrative Law Judge's Decision, at 5-7.
 
                 III.  Administrative Law Judge's Decision
 
    The Judge found that Martinez had made various remarks to employees
 and management officials attributed to him in the Notice of Proposal to
 Remove.  The Judge further concluded, however, that although the
 Respondent was well aware of Martinez's objectionable conduct during the
 April-September 1984 period, no formal discipline of any kind was
 imposed until September 10, 1984, when he received a written reprimand
 for insubordinate conduct in connection with his handling of a priority
 case assignment.  The Judge found that while his supervisor claimed to
 have counseled Martinez concerning his attitude, she had done no more
 than indicate her displeasure on a number of occasions when Martinez
 displayed what she considered unacceptable behavior.  The Judge found it
 significant that the supervisor did not enter any notations of her
 counseling in his personnel file.  The Judge noted that only after
 Martinez began to file the grievances did Respondent begin to
 investigate and collect statements from employees involved in the
 incidents used to establish a basis for charging Martinez with
 unacceptable conduct.  Regarding Martinez's alleged abuse of the
 grievance procedure, the Judge found that Martinez's actions in actively
 pursuing his grievances by seeking information and interim answers to
 questions concerning his grievances did not exceed the ambit of
 protected activity.  In view of the above, the Judge found it
 unnecessary to reach the alleged independent violation of section
 7116(a)(1) contained in the complaint.
 
                       IV.  Position of the Parties
 
    The Respondent's exceptions challenge the Judge's findings regarding
 its motives in discharging Martinez and the Judge's recommended Order
 reinstating Martinez.  Essentially, Respondent reiterates the same
 arguments it presented at the hearing regarding its motivation and the
 basis for its decision to terminate Martinez.  The Respondent contends
 that Martinez's methods of pursuing his grievances were not protected
 under the Statute.  The Respondent argues that Martinez used the
 grievance procedure to create disruptions, tension and suspicion in the
 workplace, and as leverage in an attempt to prevent management from
 performing its legitimate functions and duties.  For example, the
 Respondent alleges that Martinez's continuous demands for information
 regarding his grievances created a burden which unduly prevented
 management officials from accomplishing other work.  The Respondent
 further contends that it would have discharged Martinez even if he had
 not filed grievances and actively pursued them under the negotiated
 grievance procedure.  At the time of his removal, the Respondent
 contends that Martinez was failing to perform his work in a satisfactory
 manner, had fomented discontent, and had engaged in an ever increasing
 pattern of unacceptable behavior toward his fellow employees and
 supervisors which had an adverse effect on the operation of his section.
  Accordingly, the Respondent argues that no violation of the Statute
 occurred and that the remedy recommended by the Judge, that Martinez be
 reinstated and made whole, is inappropriate and unjustified by the
 record.
 
    The General Counsel, in its opposition to Respondent's exceptions,
 supports the findings of the Judge that the primary reason for
 Martinez's discharge was not his performance or conduct as an employee,
 but retaliation for his filing and actively pursuing grievances under
 the negotiated procedure.  The General Counsel supports the Judge's
 conclusion that Respondent by its conduct violated section 7116(a)(1)
 and (2) of the Statute.  Moreover, the General Counsel urges the
 Authority to find that Respondent independently violated section
 7116(a)(1) of the Statute by including as a basis for termination in the
 Notice of Proposal to Remove the filing of grievances.
 
                               V.  Analysis
 
                        A.  Termination of Martinez
 
    The Respondent's exceptions raise two defenses.  First, Respondent
 argues that Martinez was not discharged for having engaged in protected
 activity since the charges relating to his conduct in pursuing his
 grievances under the negotiated procedure did not involve conduct that
 was protected under the Statute.  The Respondent also contends that it
 would have removed Martinez, notwithstanding the conduct relating to his
 grievances, based on the other conduct contained in the Notice of
 Proposal to Remove.
 
           (1) Active Pursuit of Grievance is Protected Activity
 
    Section 7116(a)(1) of the Statute provides that it is an unfair labor
 practice for an agency to interfere with, restrain, or coerce any
 employee in the exercise by the employee of any right under the Statute.
  It is well established that an employee's right to file and process
 grievances under a collective bargaining agreement is protected activity
 within the meaning of section 7102 of the Statute and that management's
 actions which tend to interfere with or restrain the exercise of such
 rights constitutes unlawful interference in violation of section
 7116(a)(1).  Internal Revenue Service and Brooklyn District Office, 6
 FLRA 642 (1981).  Noting particularly that the Respondent's contention
 that Martinez abused the grievance process was based on the fact that
 Martinez continued to demand information and submitted numerous
 memoranda necessitating interim answers on his pending grievances, we
 agree with the Judge's finding that Martinez's action in actively
 pursuing his grievances did not exceed the ambit of protected activity.
 
                   (2) Termination Based on Mixed Motive
 
    With regard to Respondent's second defense, that Martinez would have
 been removed for other reasons not withstanding his conduct related to
 his grievances, the Authority in Internal Revenue Service, Washington,
 D.C., 6 FLRA 96 (1981) enunciated a test for determining whether a
 violation of the Statute has been committed in such mixed motive
 situations.  Under that test the burden is on the General Counsel to
 make a prima facie showing that the employee had engaged in protected
 activity and that this conduct was a motivating factor in an agency's
 decision to act against the employee.  If and when a prima facie case is
 established, the Respondent then has to show by a preponderance of the
 evidence that it would have reached the same decision in the absence of
 the protected conduct.
 
    In its Notice of Proposal to Remove, the Respondent in this case
 concluded based on specific incidents credited by the Judge:
 
          (1) that Martinez had prompted racial strife among the staff
       and management in the Office of Review and Appeals;
 
          (2) that he had been disruptive and unprofessional in his
       conduct with management officials and fellow employees;  and
 
          (3) that he had a hostile attitude and manner of dealing with
       management.
 
    Among the incidents relied on the support the above conclusions, the
 Respondent asserted that Martinez abused the grievance process by
 demanding information and submitting numerous memoranda concerning his
 grievances which prevented his supervisor from working on other matters.
  However, the main theme running through the Notice as well as the
 written reprimand of September 10, is the Respondent's conclusion that
 Martinez had established a pattern of misconduct that was incompatible
 with his position as a General Attorney in the Appeals Division of the
 Equal Employment Opportunity Commission's Office of Review and Appeals.
 
    In agreement with the Judge, we conclude based on the Notice of
 Proposal to Remove and the testimony credited by the Judge that the
 General Counsel established that the employee engaged in protected
 activity and that such activity was a motivating factor in the decision
 to remove him.  We further find, in disagreement with the Judge, that
 the Respondent established that it would have reached the same decision
 even in the absence of the protected conduct.  It is clear from the
 incidents credited by the Judge that the termination of Martinez was
 based on a pattern of disruptive, unprofessional conduct creating an
 atmosphere of racial strife among staff and management in the office
 which finally culminated in a written reprimand and the subsequent
 Notice of Proposal to Remove.  The written reprimand referred to three
 incidents by date and other incidents by reference where Martinez's
 conduct showed disrespect and undermined the authority of his
 supervisor.  As an example of this type of conduct, the Judge credited
 the fact in one incident that Martinez, in objecting to a priority
 assignment, flew into a rage, slammed the file on the desk, yelled at
 his supervisor so loudly that it was heard clearly several offices away
 and refused to do more work.  In the written reprimand that followed,
 the supervisor stated specifically:
 
          I have ignored previous incidents of similar behavior hoping
       that after my prior requests, your behavior would change.  I
       cannot any longer continue to do so, since this pattern of
       behavior is affecting the normal functions of this office.  Your
       tone and content of your comments are a personal attack on my
       functions and the integrity of other supervisors.  This conduct of
       jumping to conclusions, making unfound accusations, and
       consistently questioning direct supervisory instructions cannot be
       condoned.
 
    In our view, the pattern of misconduct described in the Notice and
 credited by the Judge, standing alone, is sufficient to support the
 Respondent's discharge of Martinez.  Unlike the Judge, we do not ascribe
 any adverse inference to the fact that Martinez's supervisor initially
 attempted to correct his behavior verbally and not place anything in
 writing in his record.  Only when informal efforts failed and Martinez's
 conduct became progressively worse did she issue a written reprimand and
 subsequently participate in the preparation of the Notice of Proposal to
 Remove.  We also do not ascribe any adverse inference to the fact that
 the Respondent obtained statements concerning Martinez's improper
 conduct prior to issuing the Notice of Proposal to Remove.  To do
 otherwise would have been irresponsible and inadequate personnel work.
 We find that a preponderance of the evidence establishes that
 Respondent, even in the absence of Martinez's protected activity, would
 have removed him because of the pattern of misconduct described.
 Accordingly, we conclude that the Respondent by its actions in
 terminating Martinez did not violate the Statute as alleged in the
 complaint and we shall order that portion of the complaint be dismissed.
  See Internal Revenue Service, Washington, D.C. and National Treasury
 Employees Union, 6 FLRA 96 (1981).
 
          B.  Martinez's Grievances as a Basis for Termination in
 
                Notice of Proposal to Remove
 
    The complaint also alleged that Respondent independently violated
 section 7116(a)(1) of the Statute by including as a basis for
 termination in the Notice of Proposal to Remove the processing of
 Martinez's grievances.  We disagree with the Judge's determination that
 it is unnecessary to reach this allegation.  As we previously found that
 the filing and active pursuit of these grievances were protected under
 the Statute, we view the inclusion in the Notice of Proposal to Remove
 of remarks concerning grievances filed by Martinez as an infringement
 upon the exercise of Martinez's protected rights under section 7102 of
 the Statute.  See U.S. Department of Interior, Office of the Secretary,
 U.S. Government Comptroller for the Virgin Islands, 11 FLRA 521 (1983).
 Accordingly, by including references to Martinez's filing and active
 pursuit to his grievances as a basis for termination in the Notice of
 Proposal to Remove, Respondent violated section 7116(a)(1) of the
 Statute.
 
                              VI.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, we have reviewed the rulings of the
 Judge made at the hearing, find that no prejudicial error was committed,
 and affirm those rulings.  We have considered the Judge's Decision and
 the entire record, and contrary to the Judge we conclude as found above
 that the Respondent did not violate the Statute as alleged in the
 complaint by the termination of Martinez and shall dismiss that portion
 of the complaint.  However, we find that by including Martinez's filing
 and processing of his grievances as a basis for termination in the
 Notice of Proposal to Remove, Respondent violated section 7116(a)(1) of
 the Statute.
 
                                   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 Equal Employment Opportunity Commission shall:
 
    1.  Cease and desist from:
 
    (a) Including in the Notice of Proposal to Remove Edgard Martinez
 dated October 12, 1984, any adverse comment concerning the right to file
 and process grievances under the contractual grievance procedure.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of their rights guaranteed by the
 Statute.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request, delete from the Notice of Proposal to Remove Edgard
 Martinez dated October 12, 1984, any adverse reference to the filing and
 processing of grievances filed by Martinez under the contractual
 grievance procedure.
 
    (b) Post at its Baileys Crossroads, Virginia Office, copies of the
 attached notice on forms to be furnished by the Federal Labor Relations
 Authority.  Upon receipt of such forms, they shall be signed by the
 Chairman, and shall be posted and maintained for 60 consecutive days
 thereafter in conspicuous places, including all bulletin boards and
 other places where notices to employees are customarily posted.
 Reasonable steps shall be taken to insure that such notices are not
 altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, Federal Labor
 Relations Authority, 1111 18th Street, N.W., 7th Floor, P.O. Box 33758,
 Washington, D.C. 20033-0758, in writing, within 30 days from the date of
 this Order, as to what steps have been taken to comply herewith.
 
    It is further ordered that the remaining allegation of the complaint
 in Case No. 3-CA-50243 pertaining to the discharge of Edgard Martinez is
 dismissed.
 
    Issued, Washington, D.C., December 29, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, 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 include in the Notice of Proposal to Remove Edgard
 Martinez dated October 12, 1984, any adverse comment concerning the
 right to file and process grievances under the contractual grievance
 procedure.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request, delete from the Notice of Proposal to Remove
 Edgard Martinez any adverse reference to the filing and processing of
 grievances filed by Martinez under the contractual grievance procedure.
                                       (Agency)
 
    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 III, whose address is:  1111 18th Street, NW.,
 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758 and whose
 telephone number is:  (202) 653-8500.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 3-CA-50243
 
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
         Respondent
 
                                    and
 
    EDGARD MARTINEZ
         Charging Party/Individual
 
    Erica F. Cooper, Esquire
    Bruce D. Rosenstein, Esquire
    For the General Counsel
 
    Frederick W. Ford, Esquire
    Calvin Washington, Esquire
    For the Respondent
 
    Before:  BURTON S. STERNBURG
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101 et seq., and the Rules and Regulations issued thereunder.
 
    Pursuant to an amended charge first filed on March 26, 1985 by Edgard
 R. Martinez, an individual, a Complaint and Notice of Hearing was issued
 on June 21, 1985, by the Regional Director for Region III, Federal Labor
 Relations Authority, Washington, D.C.  The Complaint alleges that the
 Equal Employment Opportunity Commission, (hereinafter called the
 Respondent or EEOC), violated Sections 7116(a)(1) and (2) of the Federal
 Service Labor-Management Relations Statute, (hereinafter called the
 Statute), by discharging Mr. Martinez because of his participation in
 activities protected by the Statute, namely, filing grievances.  It is
 further alleged that Respondent committed an independent violation of
 Section 7116(a)(1) by alluding to Mr. Martinez' protected activity as a
 basis for his removal in the formal "Notice of Proposal to Remove".
 
    A hearing was held in the captioned matter on August 6 and 7, 1985,
 in Washington, D.C.  All parties were afforded the full opportunity to
 be heard, to examine and cross-examine witnesses, and to introduce
 evidence bearing on the issues involved herein.  The General Counsel and
 the Respondent submitted post-hearing briefs on September 23, 1985, /1/
 which have been duly considered.  /2/
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions, and recommendations.
 
                             Findings of Fact
 
    At all times material herein, the American Federation of Government
 Employees, AFL-CIO, Council 216 has been the exclusive representative of
 a unit of Respondent's professional employees, including attorneys.  At
 all times material herein, the Union and Respondent have been parties to
 a collective-bargaining agreement which includes a negotiated procedure
 for the processing of grievances.  Under that agreement, an employee may
 process a grievance through the negotiated grievance procedure as an
 individual and without union representation.
 
    On July 1, 1979, Mr. Martinez was hired as a General Attorney in the
 Appeals Division of Respondent's Office of Review and Appeals.  Mr.
 Martinez remained in that position, located at Respondent's Baileys
 Crossroads, Virginia location until November 2, 1984.  For two to three
 weeks prior to his removal, which was effective November 2, 1984, Mr.
 Martinez' immediate supervisor was Mr. Gary Hozempa.  Immediately prior
 to that, from January 1984 to October 1984, Ms. Hilda Rodriguez held the
 position of Supervisory Attorney and was Mr. Martinez' immediate
 supervisor.  Ms. Rodriguez, as Supervisory Attorney reported directly to
 Mr. Robbie Dix, III, Director, Division of Appeals.  Mr. Dix, in turn,
 reported to Ms. Delores Rozzi, Director of the Office of Review and
 Appeals (ORA).
 
    During the summer of 1984, Mr. Martinez became concerned about
 changes made by ORA management in the method of performing his work.
 One such change involved the imposition of clerical duties on attorneys
 as part of their official duties.  Another change concerned attorney
 access to the office word processing equipment in the preparation of
 their draft decisions.  A third change required attorneys to proofread
 not only their own work, but work of other attorneys.  Other changes
 affecting Mr. Martinez were the manner of prioritizing case work
 assigned to attorneys and the fluctuation of case production numbers
 required of attorneys.
 
    In response to the above changes, Mr. Martinez filed four grievances
 under the applicable collective-bargaining agreement.  Mr. Martinez
 filed the first grievance concerning the use of word processing
 equipment informally with Ms. Rodriguez on July 13, 1984.  After no
 resolution was reached, on July 27, 1984, Mr. Martinez elevated that
 grievance to the next level to Office Director Rozzi.  Ms. Rozzi denied
 the grievance on August 2, 1984.  Thereafter, Mr. Martinez elevated the
 grievance on August 3, 1984 to the third level with Respondent's
 Chairman Clarence Thomas.  Chairman Thomas denied that grievance on
 September 27, 1984.
 
    On August 3, 1984, Mr. Martinez filed a second grievance at the first
 level with Ms. Rodriguez concerning what he considered the imposition of
 clerical duties on attorneys.  Additionally, in the grievance, he sought
 responses to memoranda written by Mr. Martinez on June 25, 1984 and June
 27, 1984 to management requesting specific information on attorney
 production requirements.  Ms. Rodriguez responded on August 10, 1984,
 denying his grievance.  Mr. Martinez again followed the procedure set
 forth in the collective-bargaining agreement and appealed the denial to
 Ms. Rozzi on August 16, 1984.  Ms. Rozzi denied the grievance on August
 23, 1984 which Mr. Martinez promptly raised to the third level with the
 Chairman on August 24, 1984.  Mr. Chairman denied the grievance on
 September 27, 1984.
 
    Mr. Martinez filed a third grievance at the step one level with Ms.
 Rodriguez on August 29, 1984.  The third grievance concerned a dispute
 surrounding the assignment of a particular priority case, the imposition
 of proofreading duties on attorneys, and production requirements as set
 forth in an August 28, 1984 memorandum from Ms. Rodriguez.  After
 receiving Ms. Rodriguez' first step denial on September 4, 1984, Mr.
 Martinez elevated the grievance to Ms. Rozzi at the second step on
 September 10, 1984.  Ms. Rozzi did not respond to the grievance at the
 second step, and thereafter Mr. Martinez elevated the grievance to the
 Chairman's level.  In conjunction with that grievance, Mr. Martinez
 submitted a memorandum dated September 25, 1984 to the Chairman and all
 of Respondent's Commissioners addressing his positive contributions to
 the Commission and suggesting possible ways of improving operations in
 ORA.  Although Mr. Martinez received no response to his September 25,
 1984 memorandum, Chairman Thomas denied the grievance on November 30,
 1984.
 
    By memorandum dated September 4, 1984, Mr. Martinez requested an
 adjustment of his productivity requirements.  On September 25, 1984, Mr.
 Martinez filed a first step grievance based on the lack of response to
 his September 4, 1984 memorandum.  The grievance was denied by Ms.
 Rodriguez on the same day.  Mr. Martinez appealed that denial to Ms.
 Rozzi who on September 28, 1984 informed Mr. Martinez that in accordance
 with instructions from Respondent's Labor Relations Office, the
 appropriate second step grievance level was the Division Director,
 rather than the Office Director and consequently forwarded the grievance
 to Robbie Dix, III for response.
 
    A second step grievance meeting was held on October 1, 1984 on the
 grievance.  In attendance were Mr. Martinez, Chief Steward Diane Amos
 and Mr. Dix.  On October 3, 1984, Mr. Dix denied the grievance at the
 step two level.  Mr. Martinez appealed to Ms. Rozzi on October 9, 1984.
 Ms. Rozzi denied the appeal on October 11, 1984.
 
    On October 12, 1984, Mr. Martinez attended a meeting in Division
 Director Dix's office, and received a "Notice of Proposal to Remove" him
 from his position in ORA for unacceptable and unprofessional conduct.
 Present at that meeting were Mr. Dix, Chief Steward Diane Amos, Mr. Rick
 Reda, Acting Director of ORA Administration, and Mr. Martinez.  After
 reviewing the Notice, Ms. Amos objected to its contents on the basis
 that the incidents listed therein were not specific enough to allow Mr.
 Martinez to adequately respond to the Notice and that the Notice did not
 conform to the requirements of the collective-bargaining agreement as to
 the timeliness of the allegations.  Ms. Amos asked both Ms. Rodriguez
 and Mr. Dix for more specifics.  Mr. Dix stated that Ms. Amos would have
 to get any specifics from Office Director Rozzi.  Ms. Amos received a
 memorandum dated October 22, 1984 from Ms. Rozzi denying her request for
 further clarification of the Notice.  Ms. Amos made a formal response to
 the Notice of Proposal to Remove any letter of October 24, 1984, in
 which she stated her objections to the form and content of the Notice.
 
    Three days after receiving the Notice of Proposal to Remove, on
 October 15, 1984, Mr. Martinez received his annual performance appraisal
 for the period October 1, 1983 to September 30, 1984.  Attached to that
 appraisal was an Individual Development Plan for those areas in which
 Mr. Martinez had been found to be deficient.  The Plan, drafted in
 accordance with EEOC Order 542, was designed to provide Mr. Martinez
 with 90 days to improve both the quality of his work and his conduct.
 
    Shortly thereafter on October 26, 1984 at 9:00 p.m., a private
 process server delivered two documents to Mr. Martinez at his home:  A
 Notice of Removal dated October 26, 1984 and a memorandum from Delores
 Rozzi directing Mr. Martinez to call his then supervisor Mr. Hozempa to
 arrange for an inventory of case files and government property, and
 placing him on administrative leave until the effective date of his
 removal, November 2, 1984.
 
    Respondent assigned the following reasons for its proposed action.
 
    "1.  You have demonstrated a course of conduct which has created an
 atmosphere of racial strife among the staff and management in the Office
 of Review and Appeals.
 
    2.  You have been disruptive and unprofessional in your conduct with
 management officials both inside and outside your chain of command, as
 well as with your co-workers.
 
    3.  You have been hostile in your attitude and dealings with
 management, and your conduct has rendered you ineffective in your
 relations with the staff and management of the Office of Review and
 Appeals.
 
    While some of the incidents enumerated below took place more than 60
 days ago, they clearly demonstrate a continuous behavioral pattern.  The
 specific instances of unacceptable and unprofessional conduct listed
 above on which this proposed action to remove you are based are as
 follows:
 
    REASON -- 1.  Conduct which has created an atmosphere of racial
 strife among staff and management of the Office of Review and Appeals.
 
    INCIDENTS -- 1 a.  The function of the Office of Review and Appeals
 is quasi-judicial in nature.  It requires that its employees maintain
 the highest standards of conduct, especially since they have a
 responsibility to maintain an impartial, objective point of view in the
 work they conduct.  Your comments to a former co-worker regarding his
 promotion to management, that he received this promotion only because he
 is white, reflect poor judgement on your part, violate those standards,
 jeopardizes your impartiality, creates the appearance of inefficiency,
 and adversely affects the operation of this Office.  You also told this
 employee that black employees in the office agreed and stated that his
 race was the reason for his selection.  To create a situation fostering
 racial strife in any office is clearly improper.  To do so in an Office
 such as Review and Appeals is unacceptable.
 
    1 c.  You then encouraged a black employee to file an EEO complaint
 regarding his non-selection for this same promotion.  You stated to this
 employee that he had a good case.  This type of behavior is divisive,
 and generates racial tension and suspicion, by putting black and white
 employees against one another.  This conduct cannot be permitted to
 exist in any work place, and is especially unacceptable in this Office.
 
    1 d.  You have also stated to your supervisor and to other staff
 members that white employees have received more difficult case
 assignments, when you would have no factual data on which to base such
 comments.  Furthermore, in displays of emotional outbursts, you have
 repeatedly accused the Office management, without any foundation
 whatsoever, of discriminating against white males in the daily operation
 of this Office.  In making such unfounded allegations, you have created
 an atmosphere of racial tension and suspicion.
 
    1 e.  The above actions have rendered you totally ineffective in your
 dealings with supervisors and managers in this Office, as well as with
 your co-workers.  Your behavior has been so disruptive that you have
 created racial strife in the work place;  many of your co-workers do not
 want to deal with you for fear that anything said will be used to create
 further strife and disruption.
 
    REASON -- 2.  Disruptive and unprofessional conduct.
 
    INCIDENT -- 2 a.  You have demonstrated repeatedly that you are
 extremely difficult to supervise;  you seldom accept assignments or take
 direction without challenging authority, e.g., your objections at
 receiving a priority assignment -- 05-84-0190.  You have also responded
 to directions to proofread your decisions with the objection that it is
 not your job, even though this is clearly stated in your performance
 standards.
 
    2 b.  You stated to the Federal Liaison Officer when you learned that
 he was not with the management team on the Los Angeles trip that he
 "must be on the shit list, too."
 
    2 c.  You made comments to the Director of Compliance and Control
 Division which were derogatory in nature regarding the promotion of two
 employees into management.
 
    2 d.  After the selection of another Commission employee from another
 office to a management position in this Office, you called him on at
 least three occasions, telling him of your grievances, and you alluded
 to an EEO complaint.  There is a strong implication that if he became
 your supervisor and took any kind of disciplinary action against you,
 you could allege retaliation.  As a result, this employee declined to
 accept the position, thereby causing undue hardship on this Office.
 This delayed the filling of this position, and has delayed the
 implementation of this Office's quality assurance program.
 
    2 e.  Management recognizes the right of employees to avail
 themselves of the grievance process and to bring matters of concern to
 the appropriate management officials.  However, you have clearly abused
 this process by using this mechanism to create disruptions among
 employees and management, and creating tension and suspicion.  You have
 used the grievance procedure as a threat and as leverage to attempt to
 prevent management from performing its legitimate functions and duties.
 As a result you have further made yourself ineffective in your relations
 with other employees and management.
 
    REASON -- 3.  Hostile attitude in your dealings with management.
 
    INCIDENT -- 3 a.  As referenced above at 2 a., you have demonstrated
 an extremely hostile attitude toward your supervisor when you have been
 assigned cases.  In a general staff meeting you alleged that you have
 been assigned almost nothing but merit cases, and accused management of
 assigning easier cases to the employees in the Review Division.  This
 accusation was completely unfounded.  A subsequent review of the cases
 you have submitted for approval at that time revealed that 77% were
 procedural cases.  Your comments at this meeting only served to create
 dissension among the staff and hostility towards management.
 
    3 b.  You have continuously failed to accept assignments or take
 direction without requiring the direction to be in writing, with
 specific instructions on how to deal with cases, thereby requiring an
 inordinate amount of supervisory time at the expense of other members of
 the unit (e.g., the Quinones and Dillard cases).
 
    3 c.  You have continuously written memos which make the same
 requests or seek the same guidance, and require excessive amounts of
 time to respond.  This has had an adverse impact on time to review
 cases.  As a result productivity has been impaired, and the overall
 Office productivity has suffered as well as the individual productivity
 of other members of the unit, whose cases have not been reviewed (e.g.,
 your constant requests for modifications to your GPAD standards).
 
    3 d.  You continuously present a hostile and uncooperative attitude
 towards management, e.g., during a luncheon with the Office Director,
 the attorneys in your unit, and your supervisor, you were extremely
 abusive, loud and disrespectful towards the Director, so much so that
 your supervisor and other members of the staff later apologized to the
 Director for your behavior.  Furthermore, despite several counselling
 discussions with your supervisor, your conduct toward management
 continued to deteriorate to the point that you were then issued a
 written admonishment.  All of your supervisor's efforts to get you to
 modify and improve your conduct have proven to be unsuccessful.
 
    3 e.  Since January, 1984, your supervisor has made repeated attempts
 to provide you with proper direction and guidance.  You have been
 admonished by her and by your Division Director regarding your conduct
 and behavior on several occasions.  In January, 1984, you were placed on
 a performance improvement plan, which addressed the quality of your
 work.  Within two months, you were taken off the plan because the
 quality improved.  However, your quality has again deteriorated.  It is
 evident that your hostile attitude and behavior has not only adversely
 impacted on your relations with the staff and management, but on your
 own work as well."
 
    With regard to the "incidents" relied upon in the Notice of Removal,
 Respondent produced numerous witnesses at the hearing who credibly
 testified without contradiction that "incidents" cited in the Mr.
 Martinez' Notice of Removal did in fact occur.  /3/
 
    With respect to the remarks made to various employees and/or
 management representatives concerning promotions and work assignments
 based on racial preference, the record reveals that such remarks were
 made in private conversations with the particular individuals involved.
 
    The record further reveals that although Respondent was well aware of
 Mr. Martinez' objectionable conduct which occurred during the period of
 April-September 1984, no formal discipline of any kind was imposed upon
 Mr. Martinez until September 10, 1984, when he received a Formal Written
 Admonishment from his immediate supervisor, Hilda Rodriguez for
 insubordinate conduct in connection with his handling of a priority case
 assignment.  /4/ Although Ms. Rodriguez testified that she had counseled
 Mr. Martinez concerning his attitude, etc., upon further questioning it
 was disclosed that at most she had indicated her displeasure at his
 attitude and actions on a number of occasions when he displayed what she
 considered unacceptable behavior.  No notations of her displeasure were
 ever entered in Mr. Martinez' personnel file.
 
    With respect to incident 2 e in the Notice of Removal, wherein
 reference is made to Mr. Martinez' abuse of the grievance process, both
 Ms. Rodriguez and Ms. Rozzi similarly testified that Mr. Martinez was
 never satisfied with merely filing a grievance and awaiting Respondent's
 action thereon.  Rather Mr. Martinez continued to demand information and
 submit numerous memoranda necessitating interim answers on the pending
 grievances which occupied Ms. Rodriguez' work time and prevented her
 from processing the cases submitted to her for approval.
 
    Additionally, Ms. Rozzi testified that Mr. Martinez abused the
 grievance process by informing a potential supervisor, Michael
 Baldonado, who was occupying another position with EEOC at the time
 about his pending grievances.  /5/ Mr. Baldonado, who had been a former
 co-worker of Mr. Martinez, subsequently declined the position.  Mr.
 Baldonado testified that he was uncomfortable with the information
 because he felt that knowledge of the grievances could be imputed to him
 if he became a supervisor and thereby inhibit him in his dealings with
 the employees under his supervision.  Mr. Baldonado further testified
 that although he was uncomfortable with the information imparted to him
 by Mr. Martinez, it was not the reason that he subsequently refused to
 accept the supervisory position.  Thus, he pointed out that the position
 was that of an acting supervisor and there was no guarantee that he
 would ultimately be made a permanent supervisor.
 
    The record further reveals that Mr. Martinez and Ms. Rodriguez were
 both of Puerto Rican ancestry and had been co-workers prior to Ms.
 Rodriguez' elevation to a supervisory position.  Because of their
 ancestry and former association their relationship appears to have been
 much less formal that which usually exists between a supervisor and a
 subordinate.
 
                        Discussion and Conclusions
 
    The General Counsel takes the position that the sole reason for Mr.
 Martinez' discharge was his participation in activities protected by the
 Statute, namely the filing of grievances under the negotiated grievance
 procedure.  In such circumstances the General Counsel urges that the
 undersigned find that the Respondent violated Sections 7116(a)(1) and
 (2) of the Statute and order Mr. Martinez' reinstatement with back pay.
 Additionally, the General Counsel contends that the Respondent committed
 an independent violation of Section 7116(a)(1) of the Statute by
 including a reference to Mr. Martinez' alleged abuse of the grievance
 procedure in the "Proposed Notice of Removal".
 
    The Respondent, on the other hand, takes the position, that it did
 not violate the Statute.  According to the Respondent inasmuch as Mr.
 Martinez abused the grievance process his activities in such respect did
 not fall within the protection of the Statute.  Further, Respondent,
 citing the Authority's decision in IRS, Washington, D.C., 6 FLRA No. 23,
 takes the position that in any event Mr. Martinez would have been
 discharged for reasons other than his participation in activities
 protected by the Statute, i.e., insubordination, causing racial tension,
 etc.
 
    Contrary to the contention of Respondent, I cannot find that Mr.
 Martinez' actions in actively pursuing his grievances by seeking
 information and answers to questions relative thereto somehow removed
 the grievances from the ambit of protected activity.  It appears that
 Respondent would only allow a grievant the protection of the Statute if
 he merely filed a grievance and then sat back and passively awaited
 Respondent's action thereon.
 
    Inasmuch as Respondent has failed to establish any other grounds for
 disqualification of Mr. Martinez' grievance activity from the protection
 of the Statute, I cannot find as urged by the Respondent that Mr.
 Martinez abused the grievance process.  Rather I find that his actions
 in actively pursuing his grievances were protected by the Act.  /6/
 
    In view of this conclusion and since Mr. Martinez' protected activity
 played a part in his discharge, it must not be decided, in accordance
 with the Authority's decision in IRS, Washington, supra, whether Mr.
 Martinez would have been discharged in any event for reasons unrelated
 to his participation in activities protected by the Act.  Respondent, of
 course, takes the position that Mr. Martinez would have been discharged
 for reasons other than his protected activities, namely causing racial
 tension, insubordination, etc.
 
    In this context the record establishes that the incidents cited in
 the "Notice of Proposal to Remove" did in fact occur.  However, it is
 not the existence of grounds for removal which is the test, rather the
 test appears to be whether such grounds for discharge would have been
 utilized by Respondent in the absence of the employee's participation in
 activities protected by the Statute.
 
    The record further establishes that although the supervisory
 hierarchy was well aware of such incidents, no written notations were
 ever entered into Mr. Martinez' personnel file.  In fact other than
 exhibiting displeasure with Mr. Martinez' actions, no warnings or other
 admonishments were given to Mr. Martinez.
 
    To the extent that Mr. Martinez is charged with inciting racial
 tensions, the participants in such conversations testified that they
 were not particularly upset with Mr. Martinez' actions, and appeared to
 accept such actions as an every day occurrence when dealing with Mr.
 Martinez.
 
    Further, with respect to the cited incidents involving the
 relationship between Ms. Rodriguez and Mr. Martinez and his daily
 complaints or comments to her, it should be noted that due to the fact
 that they were both of Puerto Rican ancestry and former co-workers Ms.
 Rodriguez appears to have allowed Mr. Martinez greater latitude than
 normally exists between a supervisor and an employee.
 
    Given the above, I am convinced that but for Mr. Martinez'
 participation in protected activities, namely filing and actively
 pursuing four grievances under the negotiated grievance procedure,
 Respondent would not have discharged Mr. Martinez.  It was only after
 Mr. Martinez filed his grievances and actively pursued same, that
 Respondent determined to discharge him.  To this end it approached the
 various employees who were involved in the cited incidents and obtained
 statements concerning Mr. Martinez' alleged unacceptable activities and
 then proceeded to discharge him.  Cf. JMC Transport, Inc. v. NLRB, F.2d,
 Case Nos. 84-5960 and 84-6060, (Nov. 12, 1985, 6th Cir.);  DLR No. 223,
 Nov. 19, 1985.
 
    Having concluded that Mr. Martinez would not have been discharged but
 for his participation in activities protected by the Statute, I hereby
 recommend that the Authority issue the following order designed to
 effectuate the purposes and policies of the Statute.  /7/
 
                                   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 Equal Employment Opportunity Commission shall:
 
    1.  Cease and desist from:
 
          (a) Terminating, and other discriminating against, employees
       because they have engaged in activities protected by the Federal
       Service Labor-Management Relations Statute, namely, filing and
       processing grievances under the contractual grievance procedure.
 
          (b) In any like to related manner interfering with,
       restraining, or coercing employees in the exercise of their rights
       guaranteed by the Statute.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Offer Edgard Martinez immediate and full reinstatement to
       his former or substantially equivalent position, without prejudice
       to his seniority or other rights and privileges, and make him
       whole, consistent with applicable laws and regulations, for any
       loss of income he may have suffered by reason of his unlawful
       termination by paying to him a sum of money equal to the amount he
       would have earned or received from the date of his termination to
       the effective date of the offer of reinstatement, less any amount
       earned through other employment during the above-noted period.
 
          (b) Post at its Baileys Crossroads, Virginia Office, copies of
       the attached notice marked "Appendix" on forms to be furnished by
       the Federal Labor Relations Authority.  Upon receipt of such
       forms, they shall be signed by the Director of the Office of
       Review and Appeals and shall be posted and maintained by her for
       60 consecutive days thereafter in conspicuous places, including
       all bulletin boards and other places where notices to employees
       are customarily posted.  The Director, shall take reasonable steps
       to insure that such notices are not altered, defaced, or covered
       by any other material.
 
          (c) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region III, Federal
       Labor Relations Authority, 1111 18th Street, NW., 7th Floor, P.O.
       Box 33758, Washington, D.C. 20033-0758, in writing, within 30 days
       from the date of this Order, as to what steps have been taken to
       comply herewith.
 
                                       /s/ Burton S. Sternburg,
                                       Administrative Law Judge
 
    Dated:  November 20, 1985 
            Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) Respondent on November 1, 1985 moved to file a Supplemental
 Post-Hearing Brief.  In the absence of any objection, the brief has been
 received and considered.
 
    (2) In the absence of any objection, the General Counsel's Motion to
 Correct Transcript, is hereby granted.
 
    (3) Michael Baldonado, Hilda Rodriguez, Robbie Dix, Dolores Rozzi,
 Gary Hozempa, C. Lloyd Buddo, Roscoe Elkins, Ronald Holmes and Josephine
 Trevathan.
 
    (4) The assignment of priority cases was the subject matter of Mr.
 Martinez' August 29, 1984 grievance.
 
    (5) According to Ms. Rozzi, Mr. Martinez' action with respect to Mr.
 Baldonado was like "frosting on the cake" and considering Mr. Martinez'
 past indiscretions, she decided it was time to remove him.
 
    (6) The fact that he may have told a prospective supervisor about his
 pending grievances does not alter this conclusion.
 
    (7) Having found that Respondent discharged Mr. Martinez solely
 because of his participation in activities protected by the Statute, I
 need not, and do not, reach the second allegation of the complaint,
 i.e., whether Respondent committed an independent 7116(a)(1) violation
 of the Statute by alluding to Mr. Martinez' protected activity in the
 "Notice of Proposal to Remove".
 
 
 
 
 
 
                                 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 CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE
 
            FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT terminate, or otherwise discriminate against, our
 employees because they have engaged in activities protected by the
 Federal Service Labor-Management Relations Statute, namely, filing or
 processing grievances under the contractual grievance procedure.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL offer Edgard Martinez immediate and full reinstatement of his
 former or substantially equivalent position, without prejudice to his
 seniority or other rights and privileges, and make him whole, cons