37:0161(11)CA - - HHS, SSA, Baltimore, MD and AFGE - - 1990 FLRAdec CA - - v37 p161

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[ v37 p161 ]
37:0161(11)CA
The decision of the Authority follows:


37 FLRA No. 11

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Charging Party)

57-CA-80150

DECISION AND ORDER

September 12, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached Administrative Law Judge's Decision. The Respondent did not file an opposition to the exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by placing a Union steward on restricted emergency annual leave and stating that: (1) her future emergency annual leave requests would be denied; and (2) if she were absent following the denial of an emergency annual leave request, she would be placed on LWOP (Leave Without Pay). Additionally, the complaint alleged that Respondent violated the Statute when it issued the steward a memorandum on September 30, 1987, stating that she would be placed on AWOL (Absence Without Leave) and later revised the memorandum by changing AWOL to LWOP. The Judge found that the Respondent did not violate section 7116(a)(1) and (2) of the Statute and recommended that the complaint be dismissed.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the procedural rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are affirmed.

For the reasons which follow, we find that the Respondent violated section 7116(a)(1) and (2) of the Statute by restricting the steward's use of emergency annual leave.

II. Background

The facts, which are set out fully in the Judge's decision, are summarized here. The record reveals that Jacqueline Gulash, a service representative at Respondent's Teleservice Center (TSC) in St. Louis, Missouri, has been the Union steward since 1984. As steward, Gulash engaged in a variety of representational tasks on behalf of the Union. In addition, Gulash was the principal grievant in three grievances concerning Respondent's application of its leave policy. The Judge noted that Gulash was "the Step 2 union grievance official on each of these grievances." Judge's Decision at 2.

The Judge found that "[s]ince at least 1980, Gulash has maintained a low accumulated sick and annual leave balance." Id. at 3. According to the Judge, Gulash's low sick and annual balances "resulted from numerous illnesses including a bout with cancer, allergies, dental and other assorted continuing medical problems which required periodic check-ups from an assortment of doctors and dentists." Id. The Judge also found that on many occasions when Gulash was ill, management approved emergency annual leave (annual leave which was not requested in advance) "without any apparent problem." Id.

On September 30, 1987, Gulash's supervisor met with her and explained that "she had requested emergency annual leave because she was sick on four occasions in 1987, that that was too frequent and that if she continued to make such requests she could be placed in leave without pay (LWOP) status." Id. at 4. Following that conversation, Gulash received a "report of contact" which stated that "'continued frequent requests for emergency A[nnual] L[eave] may be denied'" and that she could be placed on AWOL. Id. After Gulash questioned the statement noting that she could be placed on AWOL, her supervisor changed "AWOL" to "LWOP." Transcript at 117-18. The Union filed an unfair labor practice charge on November 18, 1987, asserting that the Respondent violated section 7116(a)(1) and (2) of the Statute by restricting Gulash's use of emergency annual leave because of her activities on behalf of the Union.

On December 21, 22, and 23, 1987, Gulash was ill. Because she had a balance of only 16 1/2 hours of sick leave, she requested annual leave for the remainder of her absence. Although she had sufficient annual leave to cover her request, Gulash was placed on AWOL. Judge's Decision at 5. When Gulash returned to work, she received another report of contact, dated December 21, 1987, which revised the September 30 report. The December 21 report stated that Gulash had been told that "'frequent requests for emergency annual leave might be denied and result in [Gulash] being placed in LWOP status. This should have said continued frequent requests for emergency annual leave may be denied, at which time you may be placed on AWOL.'" Id. at 4. When the AWOL charge was grieved, Respondent's area director changed the AWOL to annual leave. G.C. Exh. 26.

On January 20, 1988, an unfair labor practice complaint issued which alleged that on or about September 30, 1987, the Respondent:

(a) . . . in a meeting . . . placed Ms. Gulash on restricted leave in that Ms. Gulash's requests for emergency annual leave would be denied in the future, and if she were absent following the denial of an emergency annual leave request, she would be placed in leave without pay status.

(b) . . . issued a memorandum to Jacqueline R. Gulash in which it was stated that Ms. Gulash's future emergency leave requests "may be denied at which time . . . [Ms. Gulash] will be placed on AWOL [Absent Without Leave]."

(c) . . . changed the memorandum . . . , from "AWOL" to "LWOP [Leave Without Pay]."

G.C. Exh. 1(i) at 3.

III. Administrative Law Judge's Decision

The Judge found that the General Counsel did not establish a prima facie case of discrimination in violation of section 7116(a)(1) and (2) of the Statute. The Judge concluded that "[w]hile the employee herein was engaged in protected activity and the Respondent knew of that activity and the alleged discriminatory conduct concerns a condition of employment, it is difficult to find a connection between the alleged protected activity and the alleged discriminatory conduct." Judge's Decision at 6. The Judge compared Gulash's leave record and that of other employees who requested emergency annual leave between January 31 and September 30, 1987, because of illness. Id. at 5. According to the Judge, Gulash was the only employee who was given a leave restriction based on her use of emergency annual leave during that period.

The Judge also found, however, that the other employees who requested emergency annual leave during 1987 "had undergone recent periods of major surgery and/or hospitalization." Id. at 6. In addition, the Judge found that "none of these five [employees] indicated any leave problems of the long duration experienced by Gulash." Id. at 5. The Judge noted that Gulash admitted that she had been counseled concerning her use of leave five or six times during performance appraisal discussions and that five or six "write-ups" had been prepared concerning leave problems. Id. at 3. The Judge found that Gulash's "leave balance was always negligible and could have been a cause for concern for any manager." Id.

The Judge noted that examples of alleged harassment and discrimination against Gulash cited by the General Counsel to demonstrate animus were "either too remote in time or were resolved through the parties['] grievance system." Id. at 6. The Judge also found that although the attitude of McMillan (the manager of the TSC) "by not saying good morning or responses to Gulash from McMillan may have been discourteous," the General Counsel did not establish that there was a connection with Gulash's protected activities. Id.

The Judge noted and rejected the General Counsel's assertion that Respondent's reasons for the leave restriction placed on Gulash were pretextual. The Judge found that Gulash's low leave balances were one reason why Gulash was treated differently. The Judge also credited manager McMillan, who testified that "there was a policy of leniency [in granting emergency annual leave requests] for certain periods after surgery or hospitalization for the employees who worked for her." Id. at 7. The Judge noted that Gulash had been a beneficiary of that policy in the past. Id.

Finally, the Judge credited the testimony of labor relations specialist Gear who advised Gulash's supervisor that "leave did not have to be approved if there was an operational exigency" which required an employee to be at work. Id. The Judge found that the specialist's advice was "a sensible interpretation of the Master Labor Agreement." Id. The Judge concluded that:

Since this case involves a question which raises a matter of interpretation of the Master Labor Agreement by the parties, all of the General Counsel's argument concerning pretext because of work exigency or any other application of the emergency annual leave policy based on what Respondent thought that policy to be, must of necessity fail.

Id.

In conclusion, the Judge rejected "the General Counsel's position that Gulash was placed on restricted leave, told that her future emergency annual leave requests would be denied and she would be placed on AWOL and subsequently charged AWOL because of her protected activity." Id. at 7-8. The Judge recommended that the complaint be dismissed.

IV. General Counsel's Exceptions

The General Counsel excepts to the Judge's conclusions: (1) that there was insufficient evidence to establish that Gulash was treated disparately, (2) that the evidence of animus was too remote in time to be considered or was the subject of other grievances and could not be considered, and (3) that certain evidence could not be considered as evidence of pretext because it involved the parties' "differing interpretation of policies." General Counsel's Exceptions at 2.

A. First Exception

The General Counsel argues that the Judge's conclusion that there is insufficient evidence to find that Gulash was treated disparately because of her Union activities is erroneous. The General Counsel argues that the facts do not justify the Judge's conclusion that there was sufficient reason for the Respondent to treat Ms. Gulash differently because "(1) Ms. Gulash had low sick and annual leave balances in the past unlike other employees; and (2) Ms. Gulash had not undergone recent periods of hospitalization as did other employees[.]" General Counsel's Brief in Support of Exceptions (General Counsel's Brief) at 4.

Concerning Gulash's leave balances, the General Counsel notes that the issue of Gulash's sick leave balance is irrelevant because "the issue in this case is annual leave, not sick leave, and, to be even more specific, emergency annual leave, not leave requested several days in advance." Id. (emphasis in original). The General Counsel claims that the Respondent did not explain why an employee's sick leave balance would influence its decision to grant emergency annual leave requests and that the Judge did not "cite a good rationale." Id. at 5. Additionally, the General Counsel contends that, contrary to the Judge's conclusion, other employees were not placed on an emergency annual leave restriction despite leave difficulties over a period of years which were unrelated to recent hospitalizations. Id. at 7-8.

The General Counsel also asserts that the Judge should have concluded that the Respondent's assertion that it had a lenient leave policy for employees who had undergone recent periods of hospitalization was a pretext. The General Counsel argues that: "(1) no such policy [leniency in granting emergency annual leave to recently hospitalized employees] existed; or (2) if such policy did exist, it played no role in Respondent's decision to place Ms. Gulash on leave restriction." Id. at 7. The General Counsel contends that the hospitalization leave policy was never raised as a justification for Respondent's conduct until the unfair labor practice hearing and, therefore, "it may be inferred that such reasons/factors were mere afterthoughts." Id.

Additionally, the General Counsel asserts that if the Respondent had a policy of leniency in granting emergency leave requests after hospitalization, "it is difficult to determine what it was." Id. at 8. Even assuming that such a policy existed, the General Counsel asserts that it was applied unevenly. Id. at 9. Finally, the General Counsel notes the Judge's finding that the Respondent's managers were aware of Gulash's numerous illnesses. Therefore, the General Counsel argues, "it is difficult to understand why [Respondent] would be sympathetic to employees who are/were recently hospitalized and grant emergency annual leave requests . . . and not grant leave requests to an employee like Ms. Gulash." Id. at 6.

The General Counsel also asserts that the Respondent's claim that "exigency of business" was the reason for restricting Gulash's emergency annual leave was a pretext. Id. at 5. According to the General Counsel, there is no evidence in the record that the Respondent restricted the leave of any other bargaining unit employees. Id. at 15. The General Counsel asserts that "there were at least fourteen other employees with similar, if not worse, records for the entire year and for September itself." Id. at 16.

B. Second Exception

The General Counsel excepts to the Judge's failure to consider examples of management's actions involving Gulash's use of leave and a manager's assertedly negative attitude as evidence of animus. According to the General Counsel, the Judge's conclusion that the examples were too remote in time and were the subject of other grievances is erroneous. The General Counsel argues that the "[e]vidence of animus was not remote in that such evidence coincided with and continued after Gulash's designation as Union representative in 1984." General Counsel's Brief at 10 (underscoring omitted). Furthermore, according to the General Counsel "nothing in the law precludes consideration of conduct which was the subject of a grievance as evidence of animus." Id.

The General Counsel argues that the following management actions against Gulash are evidence of animus:

(1) Ms. Gulash was placed on restricted sick leave and that restriction was extended in the absence of any evidence that she was abusing sick leave.

(2) Ms. Gulash was denied leave in order to make a court appearance and placed in AWOL status for no known legitimate reason even though other employees were granted similar leave or not placed in AWOL status when leaving the worksite without approved leave.

(3) Ms. Gulash was reprimanded because her husband called in, instead of Ms. Gulash herself, (to explain that she was sick and that she would call in when she awakened) even though another employee in a similar situation had sick leave approved when his brother called in. . . .

(4) Finally, McMillan's negative attitude (failure to say "good morning" and responses towards Ms. Gulash in staff meetings) also demonstrates animus.

Id. at 10-11.

The General Counsel concedes that the supervisor's attitude alone is not sufficient to demonstrate animus. However, the General Counsel argues that this evidence was submitted as "only one example of several acts which demonstrate animus." Id. at 13. If this evidence is considered with "examples of past disparate treatment," the General Counsel asserts that there is "sufficient evidence in the record to establish animus." Id.

C. Third Exception

The General Counsel excepts to the "Judge's decision that certain evidence could not be considered as evidence of pretext because [it] involved the parties' differing interpretations of policies." General Counsel's Brief at 13. According to the General Counsel, "the issue is not how the parties interpret those policies [concerning leave after hospitalization] but whether Respondent applied disparately its interpretation of those policies." Id. (emphasis in original).

The General Counsel argues that the issue is not Respondent's leave policies, rather it is whether the policies were applied disparately to Gulash. First, the General Counsel argues that the Respondent had no lenient hospitalization leave policy and that "the alleged policy was a mere afterthought . . . raised at the hearing to draw attention away from Respondent's discriminatory conduct." Id. at 14. Second, the General Counsel asserts that the Judge erred in finding that Respondent's "exigency of business" claim involved differing and arguable interpretations of the parties' collective bargaining agreement. Id. at 14-15.

The General Counsel asserts that the record supports the conclusion that Respondent violated section 7116(a)(1) and (2) of the Statute. As a remedy, the General Counsel requests a Notice to Employees which would include "an order for respondent to remove from Gulash's personnel file the September 30 restriction and all other documents, discipline and other discriminatory conduct which flowed from that September 30 restriction and to make her whole any way she was harmed as a result of Respondent's discriminatory conduct." Id. at 20.

V. Analysis

In Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), we set forth an analytical framework to be applied in cases alleging violations of section 7116(a)(2) of the Statute. We reaffirmed that the General Counsel bears the burden of establishing by a preponderance of the evidence that an unfair labor practice has been committed. We noted that in all cases of alleged discrimination, whether the case is labelled a "pretext" or a "mixed motive" case, the General Counsel must establish a prima facie showing that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment. Id. at 118. We also stated that the General Counsel may also seek to establish, as a part of its prima facie case, that a respondent's asserted reasons for taking the allegedly discriminatory action are pretextual. Id. at 122-23.

Applying the analytical framework discussed above, we find the following:

A. The General Counsel Established a Prima Facie Showing that Gulash's Use of Emergency Annual Leave was Restricted Because of her Protected Activities

Gulash became the shop steward in 1984 and held that position in 1987 when the Respondent took the action which led to this unfair labor practice complaint. The Judge noted that, of the 32 bargaining unit employees at the TSC, only Gulash and one other employee belonged to the Union. Judge's Decision at 3. As the Union steward, Gulash performed a variety of tasks. She represented individual employees, acted as the Union representative at TSC meetings, received notices of changes in conditions of employment and adverse actions, conducted representational activities on official time, and submitted official time records used by management to keep track of that time. Id. The Judge found, and we agree, that Gulash "was engaged in protected activity and the Respondent knew of that activity[.]" Id. at 6.

The Judge also concluded that the General Counsel "did not, in all the circumstances, establish a prima facie case that Gulash was discriminated against in violation of section 7116(a)(1) and (2) of the Statute." Id. at 6-7. In reaching his decision, the Judge found that Gulash was not treated disparately compared to five other employees who had low accumulated sick leave balances. We disagree. The Respondent warned Gulash about requesting emergency annual leave in the future because she had requested emergency annual leave "on 4 occasions - 3 during the last 3 months - for a total of 26 1/2 hours AL [annual leave]" and these requests were "not considered 'infrequent.'" Id. at 4. The record shows, however, that five other employees frequently used emergency annual leave because of illness. The Respondent approved emergency annual leave requests from five other employees--Boyd, Christy, DeBoe, Demetrulias, and Jackson--who requested emergency annual leave because of illness between January 31, 1987, and September 30, 1987, as follows:

Bargaining Unit Employee   No. of Workdays   Total Hours 
     
 Boyd  2  14
 Christy  4  28 1/4
 DeBoe  5  37
 Demetrulias  7  35
 Jackson  3  17

Id. at 5. The record demonstrates that Respondent approved emergency annual leave for three other employees on as many or more days than Gulash was absent and that these employees were on leave for more hours. However, as of September 30, 1987, only Gulash was placed on an emergency annual leave restriction.

The Judge found that the Respondent treated Gulash differently from these employees, but that "Gulash's situation was different." Id. at 6. According to the Judge, "none of these five [employees] indicated any leave problems of the long duration experienced by Gulash." Id. at 5. The Judge also noted that Gulash had been counselled in the past concerning her leave balances. Id. at 6. However, neither Gulash's use of leave in prior years or the fact that she was counselled concerning leave were raised by the Respondent in the September 30 conversation or in the report of contact. Respondent's explanation to Gulash for the leave restriction was simply that her requests for emergency annual leave since January 31, 1987, were too frequent. Consequently, we conclude that Gulash's asserted leave problems do not support the Respondent's disparate treatment of Gulash.

The Judge also found that Respondent treated Gulash differently from Boyd, Christy, DeBoe, Demetrulias, and Jackson because these employees "had undergone recent periods of major surgery and/or hospitalization." Id. at 6. The Judge credited the testimony of TSC manager McMillan that "lenient hospitalization leave" was granted to employees who had been hospitalized recently. Id. Because Gulash had not been hospitalized recently (her hospitalization occurred in 1982), the Judge found that Gulash's situation was different.

We disagree with the Judge's conclusion that Respondent's practice of "lenient hospitalization leave" established a basis for treating Gulash differently than other employees more recently hospitalized. The record does not establish that bargaining unit employees were notified of the Respondent's practice of "lenient hospitalization leave" or in what circumstances it would be applied. For example, there is no evidence that management specified the period of time after hospitalization that the practice would be in effect. The employees who assertedly benefited from the lenient hospitalization leave were hospitalized at various times during the previous 3 years. Christy and Boyd were hospitalized in 1987, DeBoe in 1986, Jackson in 1985 and 1986, and Demetrulias in 1985 or 1986. Transcript at 250-58. Despite the differences in the length of time since the hospitalizations of these employees, the Respondent continued in 1987 to approve emergency annual leave without any restriction. Finally, we note that the Respondent has offered no evidence to dispute the General Counsel's assertions that the existence of "lenient hospitalization leave" was raised for the first time at the hearing and did not constitute a policy. We conclude that the Respondent's practice of approving emergency annual leave after periods of hospitalization provides no basis for its disparate treatment of Gulash.

We note that "a prima facie case consists only of 'sufficient evidence . . . to get plaintiff past . . . a motion to dismiss[.]'" Letterkenny at 119 (quoting Black's Law Dictionary 1071 (5th ed. 1979)). In our opinion, the General Counsel has provided sufficient evidence to establish a prima facie case that the Respondent discriminated against Gulash in violation of section 7116(a)(2) of the Statute because of her protected activity. We note particularly that Gulash used less emergency annual leave for illnesses than three other employees between January 31, 1987, and September 30, 1987. Furthermore, the Respondent did not rely on Gulash's use of leave in previous years when it restricted her use of emergency annual leave. Finally, we find that the Respondent's practice of granting lenient hospitalization leave does not constitute a policy which explains Respondent's restriction on Gulash's use of emergency annual leave. In the absence of any other explanation for the Respondent's disparate treatment of Gulash, we conclude that the Respondent's actions were based on consideration of Gulash's protected activity and, accordingly, the General Counsel has established a prima facie case that the Respondent violated section 7116(a)(2) of the Statute.

B. The Respondent Did Not Establish That It Would Have Restricted Gulash's Use of Emergency Annual Leave in the Absence of Her Union Activity

Under Letterkenny, if the General Counsel establishes a prima facie showing of discrimination based on protected activity, a respondent will not be found to have violated section 7116(a)(2) if the respondent establishes, by a preponderance of the evidence, that: (1) there was a legitimate justification for its actions; and (2) the same action would have been taken in the absence of protected activity. Letterkenny at 123. In this case, we conclude that the Respondent has not shown a legitimate reason for placing Gulash on an emergency annual leave restriction and that this action would have been taken if Gulash had not been the Union steward.

The Respondent told Gulash that she had used emergency annual leave too frequently. The report of contact given to Gulash by her supervisor on September 30, 1987, stated that Gulash had taken 26 and 1/2 hours of emergency annual leave on 4 workdays when her use of annual leave was restricted. Judge's Decision at 4. As noted above, Gulash used fewer hours than three of the five employees who were granted emergency annual leave for illness based on the Respondent's asserted "lenient hospitalization leave" policy.

Excluding the five employees who benefited from the asserted "lenient hospitalization leave," the General Counsel asserts that "there is no evidence in the record to explain why nine other employees did not receive leave restrictions. General Counsel's Brief at 16. The General Counsel submitted evidence, which was not contradicted by the Respondent, that eight of these nine bargaining unit employees used more emergency annual leave from January 31, 1987, to September 30, 1987, than Gulash used. Based on leave records, the General Counsel asserts that employees used emergency annual leave from January 31, 1987, to September 30, 1987, as follows:

Bargaining Unit Employee  No. of Workdays   Total Hours
     
 Albertina  11  27 1/4
 Berris  10  39 1/4
 Carter  12  5 3/4
Lowe  12  73 1/2
 Potterfield  24  79 1/2
Read  17  49 1/2
 Ross  20  46 1/4
 Schlottach  8  38 1/2
 Wright  31  56 3/4.

G.C. Brief to the Administrative Law Judge, Appendix B.

All of these employees used emergency annual leave on more workdays than Gulash and seven employees used substantially more hours than Gulash. Respondent has not explained why Gulash was treated differently concerning the use of emergency annual leave. No employee, except Gulash, had his or her use of emergency annual leave restricted. A review of the leave records submitted by the General Counsel shows that only one employee was denied emergency annual leave between January 31, 1987, and September 31, 1987--on May 29, 1987, an employee requested approval to use 3 hours of annual leave on that day and the request was denied by a supervisor. G.C. Exh. 3E at 38.

TSC manager McMillan asserted that Gulash's absences created a problem because "there was no way to plan for her absences. Other people who had planned ahead were off already and . . . it didn't seem fair to call them back." Transcript at 202. We note that Gulash requested annual leave because she was ill. According to the Judge, "[t]he record shows that Gulash's low sick and annual balances resulted from numerous illnesses including a bout with cancer, allergies, dental and other assorted continuing medical problems which required periodic check-ups from an assortment of doctors and dentists." Judge's Decision at 3. The Judge also noted that "McMillan and other management officials . . . were well aware of these medical and dental problems." Id. It is undisputed that Gulash's absences on the 4 days in 1987 when she requested emergency annual leave were due to illness and, therefore, were unplanned. Accordingly, even if Gulash had had sick leave available to use, management would have been unable to plan the four absences which were cited in the September 30, 1987, report of contact. In this regard, we note there is no evidence that the Respondent sought to restrict Gulash's use of emergency annual leave because management suspected that she was abusing her use of that leave. Gulash's leave records for September 23, 24, and 25, 1987, include the remark that she called in to request emergency annual leave because of illness. G.C. Exh. 3I at 28, 29, and 34.

Manager McMillan also testified that Gulash's requests for emergency annual leave were "a problem because we were--we really needed her on the job and we were losing a lot of calls in the year 1987." Transcript at 201-02. The argument that the Respondent's operations might preclude approval of Gulash's future requests for emergency annual leave fails because of the number of hours of emergency annual leave approved for other bargaining unit employees. None of these employees were restricted in their use of emergency annual leave or were warned that such leave might not be approved in the future. We note, in this regard, that the Respondent does not assert, and the record does not show, that the Respondent had a particular need for Gulash's services, as opposed to those of other employees. Further, McMillan testified that two employees, Christy and Boyd, received warnings concerning leave. However, the record shows that both employees were warned after the unfair labor practice charge was filed in this case. G.C. Exh. 8 and 9.

Finally, we note that the General Counsel does not dispute the interpretation of the parties' collective bargaining agreement that labor relations specialist Gear provided TSC management concerning when a denial of an employee's request for emergency annual leave was warranted. Rather, the General Counsel argues that, consistent with the Respondent's own interpretation of the agreement, the Respondent treated Gulash disparately by restricting her use of emergency annual leave. Accordingly, the Respondent's assertion that an operational exigency required that it restrict Gulash's use of emergency annual leave does not necessitate an interpretation of the parties' collective bargaining agreement and we do not address the Judge's findings in this regard.

Based on our consideration of all the circumstances in this case, we conclude that the Respondent has not rebutted the General Counsel's prima facie showing that it restricted Gulash's use of emergency annual leave because of her protected Union activities. The reason the Respondent asserted for its action, that Gulash used emergency annual leave too frequently is not supported by the record. We note particularly that other bargaining unit employees used substantially more emergency annual leave than Gulash from January 31, 1987, to September 30, 1987, but the Respondent did not warn any of these employees that their use of such leave was too frequent. Additionally, the amount of emergency annual leave that the Respondent approved for other employees refutes the Respondent's assertion that operational exigency mandated that Gulash's use of emergency annual leave be restricted. Accordingly, we find that the Respondent violated section 7116(a)(1) and (2) of the Statute.

VI. Conclusion

We find that the General Counsel has established by a preponderance of the evidence that Respondent violated section 7116(a)(1) and (2) of the Statute by restricting Gulash's future requests for emergency annual leave and issuing her a memorandum in which the Respondent told Gulash that if she were absent following the denial of an emergency annual leave request, she would be placed on LWOP or AWOL.

VII. Order

Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, shall:

1. Cease and desist from:

(a) Discriminating against Jacqueline Gulash by unlawfully restricting her use of emergency annual leave because of her protected Union activities.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of the rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Remove the restriction placed on Ms. Gulash's use of emergency annual leave on September 30, 1987.

(b) Remove from Ms. Gulash's personnel file the September 30, 1987 report of contact and all other documents and records of disciplinary actions which flowed from the September 30, 1987 restriction.

(c) Make Ms. Gulash whole for any harm which resulted from the issuance of the September 30, 1987, report of contact, including changing to annual leave any charges of LWOP or AWOL which flowed from the report of contact.

(d) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director of the Agency's Teleservice Center in St. Louis, Missouri, 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 ensure that such notices are not altered, defaced, or covered by any other materials.

(e) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director, Region V, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT discriminate against Jacqueline Gulash by unlawfully restricting her use of emergency annual leave because of her protected Union activities.

WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of the rights assured them by the Statute.

WE WILL remove the restriction placed on Ms. Gulash's use of emergency annual leave on September 30, 1987; remove from Ms. Gulash's personnel file the September 30, 1987, report of contact and all other documents and records of disciplinary actions which flowed from the September 30, 1987, restriction; and make Ms. Gulash whole for any harm which resulted from the issuance of the September 30, 1987, report of contact, including changing to annual leave any charges of leave without pay (LWOP) or absence without leave (AWOL) which flowed from the report of contact.

_______________________
(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 V, Federal Labor Relations Authority, whose address is: 175 W. Jackson Blvd., Suite 1359-A, Chica