U.S. Department of the Air Force, Electronic Systems Division (AFCS), Hanscom Air Force Base, Massachusetts (Respondent) and Harriet L. Guerin - National Association of Government Employees (Complainants)

 1 FLRA No. 25
 
 U.S. DEPARTMENT OF THE AIR FORCE
 ELECTRONIC SYSTEMS DIVISION (AFCS)
 HANSCOM AIR FORCE BASE, MASSACHUSETTS
 Respondent
 
 and
 
 HARRIET L. GUERIN - NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES
 (NAGE)
 Complainants
 
                                            Assistant Secretary
                                            Case No. 31-10773(CA)
 
                            DECISION AND ORDER
 
    ON DECEMBER 15, 1978, ADMINISTRATIVE LAW JUDGE RANDOLPH D. MASON
 ISSUED HIS RECOMMENDED DECISION AND ORDER 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.  NO EXCEPTIONS WERE FILED TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 ON. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
 THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
 CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 31-10773(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., APRIL 27, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    JOHN G. ABIZAID, ESQ.
 
    OFFICE OF THE STAFF JUDGE ADVOCATE
 
    HANSCOM AIR FORCE BASE
 
    BEDFORD, MASSACHUSETTS 01731
 
                            FOR THE RESPONDENT
 
    FERNAND J. DUPERE', JR., ESQ.
 
    NATIONAL REPRESENTATIVE
 
    NATIONAL ASSOCIATION OF GOVERNMENT
 
    EMPLOYEES
 
    285 DORCHESTER AVENUE
 
    BOSTON, MASSACHUSETTS 02127
 
                            FOR THE COMPLAINANT
 
    BEFORE:  RANDOLPH D. MASON
 
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           PRELIMINARY STATEMENT
 
    THIS PROCEEDING WAS HEARD IN BOSTON, MASSACHUSETTS, ON SEPTEMBER 21,
 1978, AND ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED.  PURSUANT TO
 THE REGULATIONS OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
 RELATIONS (HEREINAFTER CALLED THE ASSISTANT SECRETARY), A NOTICE OF
 HEARING ON COMPLAINT WAS ISSUED ON AUGUST 2, 1978.  THIS CASE WAS
 INITIATED BY A COMPLAINT FILED ON JANUARY 19, 1977, WHICH COMPLAINT WAS
 AMENDED ON JANUARY 31, 1977, BY HARRIET L.  GUERIN AND THE NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) (HEREINAFTER THE "UNION").
 THE AMENDED COMPLAINT ALLEGED THAT THE 2014TH COMMUNICATIONS SQUADRON
 (AFCS), HANSCOM AIR FORCE BASE, MASSACHUSETTS, (HEREINAFTER RESPONDENT)
 VIOLATED SECTIONS 19(A)(1), (2), (5), AND (6) OF THE EXECUTIVE ORDER.
 THE ISSUES PRESENTED FOR DECISION ARE AS FOLLOWS:  /2/
 
    I.  WHETHER THE RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6) BY
 REFUSING TO GIVE THE UNION THE OPPORTUNITY TO BE REPRESENTED AT A
 MEETING ON NOVEMBER 3, 1976;  AND, WHETHER RESPONDENT VIOLATED SECTION
 19(A)(1) BY DENYING AN EMPLOYEE'S REQUEST FOR ASSISTANCE BY THE
 EXCLUSIVE REPRESENTATIVE AT THIS MEETING;  AND,
 
    II.  WHETHER ONE OF RESPONDENT'S SUPERVISORS MADE AN ANTI-UNION
 STATEMENT AT THE ABOVE MEETING IN VIOLATION OF SECTION 119(A)(1);  AND,
 
    III.  WHETHER AN EMPLOYEE'S DISCHARGE FROM EMPLOYMENT WAS DUE, IN
 PART, TO ANTI-UNION CONSIDERATIONS IN VIOLATION OF SECTION 19(A)(2).
 
    AT THE HEARING, ALL PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED
 FULL OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, TO EXAMINE AND
 CROSS-EXAMINE WITNESSES, AND ARGUE ORALLY.  THEREAFTER, BOTH PARTIES
 FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED.  UPON THE ENTIRE RECORD IN
 THIS CASE, FROM MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND
 FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED AT THE HEARING, I MAKE
 THE FOLLOWING FINDINGS, CONCLUSIONS, AND RECOMMENDATION.
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN, LOCAL R1-8 OF THE NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES WAS THE EXCLUSIVE BARGAINING
 REPRESENTATIVE OF VARIOUS NON-SUPERVISORY EMPLOYEES OF THE RESPONDENT.
 
    2.  ON OR ABOUT JANUARY 5, 1976, HARRIET GUERIN WAS HIRED BY THE
 RESPONDENT AS A GS-3 TELEPHONE OPERATOR.  ON NOVEMBER 1, 1976, GUERIN
 WAS ASKED ON THREE SEPARATE OCCASIONS BY THE ACTING CHIEF OPERATOR TO
 ASSIST A STUDENT OPERATOR.  ON EACH OCCASION, GUERIN RESPONDED
 NEGATIVELY TO THE SUPERVISOR, STATING THAT THE REQUESTED ACTIVITY WAS
 NOT WITHIN HER JOB DESCRIPTION.  THE JOB DESCRIPTION GENERALLY STATES
 THAT AN OPERATOR WILL PERFORM OTHER DUTIES AS ASSIGNED.
 
    3.  ON NOVEMBER 2, 1976, THE ABOVE ACTING CHIEF OPERATOR DELIVERED A
 MEMORANDUM TO THE CHIEF OPERATOR, SHIRLEY MANCHUROWSKI, DESCRIBING IN
 DETAIL THE THREE INCIDENTS IN WHICH GUERIN FAILED TO COOPERATE ON THE
 PREVIOUS DAY.  LATER ON NOVEMBER 2, GUERIN WAS CALLED INTO A MEETING
 WHICH SQUADRON COMMANDER WILCOX, MANCHUROWSKI, AND THE INDIVIDUAL WHO
 HAD BEEN THE ACTING CHIEF OPERATOR ON NOVEMBER 1.  GUERIN WAS GIVEN A
 COPY OF THE ABOVE MEMORANDUM.  SHE OBJECTED TO THE CONTENTS OF THE
 MEMORANDUM, STATING THAT THE INCIDENTS DID NOT OCCUR EXACTLY AS SET
 FORTH IN THE MEMORANDUM.  SHE WAS THEN TOLD THAT THE DISCUSSION WOULD
 CONTINUE IN THE MORNING.
 
    4.  ON THE MORNING OF NOVEMBER 3, 1976, HARRIET GUERIN AND ANOTHER
 TELEPHONE OPERATOR, MICHELLE BILODEAU, WERE CALLED INTO A MEETING WITH
 WILCOX, MANCHUROWSKI, AND ANOTHER SUPERVISOR.  THE MEETING WAS CALLED
 FOR THE PURPOSE OF ATTEMPTING TO RESOLVE PROBLEMS WHICH THE CHIEF
 OPERATOR, MANCHUROWSKI, WAS HAVING WITH GUERIN AND BILODEAU REGARDING
 THEIR CONDUCT AT THE SWITCHBOARD.  WILCOX SPOKE ABOUT CERTAIN CHANGES
 THAT THESE TWO EMPLOYEES WOULD HAVE BE MAKE WITH RESPECT TO THEIR BREAKS
 AND LUNCH HOURS.  THEN GUERIN RAISED THE SUBJECT OF THE NOVEMBER 2
 MEMORANDUM TO WHICH SHE HAD OBJECTED ON THE PREVIOUS DAY.  GUERIN
 REQUESTED PERMISSION TO HAVE HER UNION REPRESENTATIVE PRESENT DURING
 THIS PART OF THE DISCUSSION.  WILCOX REFUSED TO GRANT THIS REQUEST,
 STATING THAT HE FELT THAT THE MATTER UNDER DISCUSSION WAS SOMETHING
 BETWEEN HIMSELF AND GUERIN CONCERNING JOB PERFORMANCE AND THAT A UNION
 REPRESENTATIVE WAS NOT NEEDED.  HE ALSO STATED THAT HE DID NOT THINK IT
 WOULD BE APPROPRIATE TO HAVE A UNION REPRESENTATIVE PRESENT DURING
 FUTURE MEETINGS WITH GUERIN CALLED FOR THE PURPOSE OF RESOLVING HER
 INDIVIDUAL PROBLEMS ON THE JOB.  AT THAT POINT, BILODEAU WAS EXCUSED
 FROM THE MEETING SINCE THE DISCUSSION NO LONGER CONCERNED HER.  THE
 MEETING HAD BEGUN AT ABOUT 9:00 A.M.; GUERIN WAS EXCUSED AT ABOUT 11:30
 A.M.
 
    5.  AT APPROXIMATELY 4:00 P.M. ON NOVEMBER 3, MANCHUROWSKI CALLED
 GUERIN TO HER OFFICE AND TOLD HER THAT SHE WAS GOING TO HAVE TO "DO SOME
 SERIOUS THINKING" ABOUT WHETHER TO RETAIN GUERIN IN HER POSITION.  IN
 THIS REGARD, MANCHUROWSKI WAS REQUIRED BY THE FEDERAL PERSONNEL MANUAL
 TO SUBMIT, NO LATER THAN NOVEMBER 5, AN EVALUATION OF GUERIN, WHO WAS
 STILL IN HER PROBATIONARY STATUS.  IN THE EVALUATION, MANCHUROWSKI WOULD
 BE REQUIRED TO RECOMMEND WHETHER GUERIN SHOULD BE DISMISSED OR RETAINED
 BEYOND THE PROBATIONARY PERIOD.
 
    6.  ON NOVEMBER 5 MANCHUROWSKI OFFICIALLY NOTIFIED GUERIN IN WRITING
 THAT SHE WAS BEING TERMINATED FROM HER POSITION AS TELEPHONE OPERATOR
 FOR RESPONDENT EFFECTIVE NOVEMBER 19, 1976.  THE LETTER OF SEPARATION
 ENUMERATED SEVERAL INCIDENTS IN WHICH GUERIN HAD FAILED TO COOPERATE IN
 THE PERFORMANCE OF HER DUTIES AS A TELEPHONE OPERATOR.  IN ADDITION TO
 THE REPEATED REFUSALS TO AID STUDENT OPERATORS ON NOVEMBER 1, THE LETTER
 ALSO REFERRED TO DISRUPTIVE CONVERSATIONS AT THE SWITCHBOARD AND AN
 ANGRY CONFRONTATION WITH THE CHIEF OPERATOR ON OCTOBER 7, 1976.  IT WAS
 ALSO ASSERTED THAT GUERIN'S CONDUCT AND PERSONALITY HAD RESULTED IN A
 DECREASE IN OFFICE MORALE.
 
    7.  GUERIN IMMEDIATELY REQUESTED A REVIEW OF THE SEPARATION ACTION
 AND ON NOVEMBER 16 SHE ATTEMPTED TO REFUTE THE CHARGES BY HAVING SEVERAL
 FELLOW EMPLOYEES SPEAK ON HER BEHALF.  THESE EMPLOYEES STATED AT THAT
 TIME THAT THEY HAD NEVER SEEN GUERIN BE UNCOOPERATIVE IN THE PERFORMANCE
 OF HER JOB OR HAVE AN ANGRY CONFRONTATION WITH ANYONE AT THE
 SWITCHBOARD.  IT IS NOT KNOWN WHETHER THESE EMPLOYEES WERE ACTUALLY
 PRESENT DURING THE INCIDENTS WHICH WERE ALLEGED BY MANCHUROWSKI.
 
    8.  ON NOVEMBER 18 THE DISCHARGE WAS SUSTAINED BY THE DIRECTOR OF
 OPERATIONS.  HE HAD GIVEN GUERIN A "CERTIFICATE OF PROFICIENCY" IN APRIL
 OF 1976 FOR HER WORK AT THE SWITCHBOARD.  HE HAD ALSO GIVEN HER A LETTER
 OF COMMENDATION IN SEPTEMBER OF 1976 CONGRATULATING GUERIN ON PROMPTLY
 RESPONDING TO A TEST CALL.  THIS DOCUMENT WAS ALSO SIGNED BY WILCOX AND
 WAS ESSENTIALLY A FORM LETTER WHICH WAS SENT TO OTHER OPERATORS FOR THIS
 PURPOSE.
 
                            CONCLUSIONS OF LAW
 
    I.  THE FIRST ISSUES ARISE OUT OF RESPONDENT'S REFUSAL TO ALLOW A
 UNION REPRESENTATIVE TO BE PRESENT AT THE NOVEMBER 3, 1976, MEETING.  IT
 IS FIRST NECESSARY TO DETERMINE WHETHER THE UNION HAD A RIGHT TO BE
 REPRESENTED;  IF SO, RESPONDENT'S REFUSAL WOULD HAVE CONSTITUTED A
 VIOLATION OF SECTIONS 19(A)(6) AND (1) OF THE EXECUTIVE ORDER.
 
    UNLESS OTHERWISE AGREED BY THE PARTIES, A UNION HAS THE RIGHT TO 0E
 REPRESENTED AT MEETINGS WITH AGENCY MANAGEMENT ONLY UNDER THE
 CIRCUMSTANCES SET FORTH IN THE LAST SENTENCE OF SECTION 10(E).  NATIONAL
 AERONAUTICS AND SPACE ADMINISTRATION (NASA), WASHINGTON, D.C., A/SLMR
 457, FLRC 74 A-95 (SEPTEMBER 26, 1975), REPORT NO. 84.  THAT SENTENCE
 PROVIDES:
 
    THE LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO BE
 REPRESENTED AT FORMAL
 
    DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
 REPRESENTATIVES CONCERNING
 
    GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
 AFFECTING GENERAL WORKING
 
    CONDITIONS OR EMPLOYEES IN THE UNIT.
 
    THE MEETING IN QUESTION DID NOT CONSTITUTE A "FORMAL DISCUSSION"
 WITHIN THE MEANING OF SECTION 10(E).  THE MEETING CLEARLY DID NOT
 INVOLVE ANY DISCUSSION OF GRIEVANCES, PERSONNEL POLICIES AND PRACTICES,
 OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN
 THE UNIT. THE MEETING WAS CALLED FOR THE PURPOSE OF COUNSELING TWO
 INDIVIDUAL EMPLOYEES REGARDING PROBLEMS WITH THEIR PERFORMANCE AT THE
 SWITCHBOARD.  SINCE THE DISCUSSION CONCERNED THE POSSIBLE MISCONDUCT OF
 ONLY TWO EMPLOYEES AND DID NOT INVOLVE THE EMPLOYMENT INTERESTS OF OTHER
 PERSONNEL IN THE BARGAINING UNIT, I MUST CONCLUDE THAT THE UNION DID NOT
 HAVE ANY RIGHT TO BE REPRESENTED AT THIS MEETING.  SOCIAL SECURITY
 ADMINISTRATION, GREAT LAKES PROGRAM CENTER, CHICAGO, ILLINOIS, A/SLMR
 804(1977).
 
    THE NEXT ISSUE FOR CONSIDERATION IS WHETHER RESPONDENT VIOLATED
 SECTION 19(A)(1) BY REFUSING HARRIET GUERIN'S REQUEST TO BE REPRESENTED
 BY THE UNION AT THE NOVEMBER 3 MEETING.  THE FEDERAL LABOR RELATIONS
 COUNCIL HAS HELD THAT AN EMPLOYEE IN A UNIT OF EXCLUSIVE RECOGNITION
 DOES NOT HAVE A PROTECTED RIGHT UNDER THE ORDER TO ASSISTANCE OR
 REPRESENTATION AT A NONFORMAL INVESTIGATIVE MEETING OR INTERVIEW TO
 WHICH HE IS SUMMONED BY MANAGEMENT.  STATEMENT ON MAJOR POLICY ISSUE,
 FLRC 75P-2, REPORT NO. 116 (DECEMBER 2, 1976).  IN THE INSTANT CASE, THE
 MEETING IN QUESTION WAS NONFORMAL IN NATURE FOR THE REASONS SET FORTH
 ABOVE. THE UNION ALLEGES THAT WHEN THE NOVEMBER 2 MEMORANDUM CONCERNING
 GUERIN'S FAILURE TO COOPERATE WAS RAISED, GUERIN HAD REASON TO BELIEVE
 THAT MANAGEMENT MIGHT TAKE DISCIPLINARY ACTION AGAINST HER AND THAT HER
 EMPLOYMENT INTERESTS NEEDED PROTECTION.  THE ASSISTANT SECRETARY HAS
 HELD UNDER SIMILAR CIRCUMSTANCES THAT THE EMPLOYEE DOES NOT HAVE A RIGHT
 TO REPRESENTATION.  INTERNAL REVENUE SERVICE, A/SLMR 897(1977).
 ACCORDINGLY, I MUST CONCLUDE AND HOLD THAT RESPONDENT DID NOT VIOLATE
 THE ORDER SINCE NEITHER THE INDIVIDUAL EMPLOYEE NOR THE UNION HAD A
 RIGHT TO BE REPRESENTED AT THE NOVEMBER 3 MEETING.
 
    II.  THE NEXT ISSUE PRESENTED FOR DECISION IS WHETHER SQUADRON
 COMMANDER WILCOX UTTERED WORDS TO THE EFFECT THAT HE WOULD NOT PERMIT
 HIS STAFF TO MEET WITH GUERIN AND ANY UNION REPRESENTATIVE WITH REGARD
 TO ANY MATTER.  COMPLAINANT CONTENDS THAT THE STATEMENT WAS MADE AND
 THAT IT CONSTITUTED A VIOLATION OF SECTION 19(A)(1).  AFTER REVIEWING
 THE RECORD ON THIS ISSUE, I CHOOSE TO CREDIT THE TESTIMONY OF THE
 SQUADRON COMMANDER AND FIND THAT HE DID NOT MAKE SUCH A STATEMENT.  THE
 SUBSTANCE OF HIS STATEMENT TO GUERIN AT THE NOVEMBER 3 MEETING WAS
 MERELY THAT HE WOULD NOT PERMIT A UNION REPRESENTATIVE TO BE PRESENT
 DURING ANY FUTURE COUNSELING SESSIONS WITH GUERIN SIMILAR TO THE
 NOVEMBER 3 MEETING.  I FIND AND CONCLUDE THAT NEITHER THE TONE NOR THE
 CONTENT OF WILCOX'S STATEMENT CONSTITUTED A VIOLATION OF SECTION
 19(A)(1).
 
    III.  THE FINAL ISSUE IS WHETHER RESPONDENT DISCHARGED GUERIN FROM
 HER POSITION ON THE BASIS OF UNION CONSIDERATIONS IN VIOLATION OF
 SECTIONS 19(A)(2) AND (1).  /3/ COMPLAINANTS ARGUE THAT GUERIN WAS
 DISMISSED PRIMARILY BECAUSE SHE REQUESTED A UNION REPRESENTATIVE AT THE
 NOVEMBER 3, 1976, MEETING.  IF THIS WAS ONE OF THE REASONS FOR HER
 DISMISSAL, RESPONDENT WOULD HAVE VIOLATED SECTION 19(A)(2).  /4/
 
    I HAVE CONCLUDED THAT COMPLAINANTS HAVE FAILED TO SUSTAIN THEIR
 BURDEN OF PROVING THAT GUERIN'S REQUEST FOR A UNION REPRESENTATIVE
 PLAYED ANY PART IN HER DISMISSAL.  IN AM NOT CONVINCED THAT WILCOX'S
 REFUSAL TO ALLOW A UNION REPRESENTATIVE TO BE PRESENT AT GUERIN'S
 COUNSELING SESSIONS PROVED THAT HE HAD AN ANTI-UNION ATTITUDE;  IN THE
 CIRCUMSTANCES OF THIS CASE HE WAS UNDER NO OBLIGATION TO PERMIT
 REPRESENTATION AT SUCH MEETINGS.  FURTHERMORE, COMPLAINANTS HAVE FAILED
 TO ADDUCE ANY OTHER EVIDENCE TENDING TO PROVE THE EXISTENCE OF UNION
 ANIMUS.
 
    COMPLAINANTS ARGUE THAT THE REASONS GIVEN BY MANAGEMENT FOR THE
 TERMINATION, WHICH ARE SET FORTH IN THE NOVEMBER 5 LETTER OF SEPARATION,
 WERE MERELY A PRETEXT DESIGNED TO CONCEAL UNION ANIMUS.  AGAIN, THEY
 HAVE FAILED TO SUSTAIN THEIR BURDEN OF PROOF.  RESPONDENT ALLEGED IN THE
 LETTER THAT GUERIN HAD FAILED TO COOPERATE AND GAVE EXAMPLES IN SUPPORT
 OF ITS POSITION.  THE INCIDENT WHICH OCCURRED ON NOVEMBER 1, 1976, IN
 WHICH SHE FAILED TO COOPERATE ON THREE OCCASIONS, IS INDICATIVE OF AN
 UNDERLYING CONFLICT BETWEEN GUERIN AND ONE OF HER SUPERVISORS.  A LETTER
 FROM HER SUPERVISOR DESCRIBING THIS INCIDENT WAS GIVEN TO HER, AND
 PLACED IN HER PERSONNEL FOLDER, BEFORE THE REQUEST FOR UNION
 REPRESENTATION WAS MADE AND WAS INDEPENDENT OF ANY UNION CONSIDERATIONS.
  COMPLAINANTS ATTEMPTED TO REFUTE THE EXISTENCE OF THE OTHER INCIDENTS
 DESCRIBED BY MANAGEMENT THROUGH THE TESTIMONY OF CO-WORKERS.  HOWEVER,
 THESE WITNESSES ESSENTIALLY TESTIFIED THAT THEY WERE UNAWARE OF THE
 OCCURRENCES, AND DID NOT PROVE THAT THEY DID NOT OCCUR.
 
    FINALLY, COMPLAINANTS EMPHASIZE THE FACT THAT GUERIN RECEIVED HER
 NOVEMBER 5 LETTER OF SEPARATION ONLY TWO DAYS AFTER SHE HAD REQUESTED
 UNION REPRESENTATION.  THEY ALSO POINT TO HER SUPERVISOR'S REMARK A FEW
 HOURS AFTER THIS REQUEST TO THE EFFECT THAT SHE WOULD HAVE TO SERIOUSLY
 CONSIDER WHETHER GUERIN SHOULD BE RETAINED.  THEY ARGUE THAT THE
 PROXIMITY OF THESE EVENTS PROVES THE DISMISSAL WAS DUE, AT LEAST IN
 PART, TO UNION ANIMUS.  I DISAGREE.  THE LETTER OF SEPARATION WAS
 WRITTEN ON NOVEMBER 5 BECAUSE THAT WAS THE LAST DAY THAT SUCH ACTION
 COULD BE TAKEN FOR THE PURPOSE OF DISCHARGING GUERIN DURING HER
 PROBATIONARY PERIOD.  I FIND THAT THE PROXIMITY IN TIME, ABSENT ANY
 OTHER PROBATIVE EVIDENCE OF UNION ANIMUS, MERELY RAISES A SUSPICION
 WHICH DOES NOT SUFFICE TO CARRY THE COMPLAINANTS' BURDEN OF PROOF.
 
    ACCORDINGLY, I MUST CONCLUDE AND HOLD THAT RESPONDENT DID NOT VIOLATE
 SECTIONS 19(A)(2) AND (1) OF THE ORDER.  SEE, E.G., DEPARTMENT OF
 TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION WILLIAM P. HOBBY AIRPORT
 TRAFFIC CONTROL TOWER (TRACAB), HOUSTON, TEXAS, A/SLMR 1039(1978).
 
                              RECOMMENDATION
 
    IN VIEW OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, I
 HEREBY RECOMMEND TO THE ASSISTANT SECRETARY THAT THE COMPLAINT BE
 DISMISSED IN ITS ENTIRETY.
 
                             RANDOLPH D. MASON
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  DEC 15 1979
 
    WASHINGTON, D.C.
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /2/ COMPLAINANTS FAILED TO CARRY THEIR BURDEN OF PROVING THAT
 RESPONDENT REFUSED TO ACCORD APPROPRIATE RECOGNITION TO THE UNION AND
 ABANDONED THE SECTION 19(A)(5) ALLEGATION AT THE CONCLUSION OF THE
 HEARING.
 
    /3/ THE REGIONAL ADMINISTRATOR DISMISSED THIS ALLEGATION ON THE
 GROUND THAT IT WAS NOT PROPERLY RAISED IN THE PRECOMPLAINT CHARGE;
 HOWEVER, I AM BOUND BY THE ASSISTANT SECRETARY'S SUBSEQUENT REVERSAL
 HOLDING THAT A REASONABLE BASIS FOR THE COMPLAINT HAD BEEN ESTABLISHED
 FOR ALL ISSUES INCLUDING THE ALLEGED VIOLATION OF SECTION 19(A)(2).
 
    /4/ IN ITS CLOSING STATEMENT COMPLAINANT INADVERTENTLY ABANDONED
 SECTION 19(A)(2) AND IMPROPERLY CHARACTERIZED THE ALLEGED FACTS AS A
 VIOLATION OF SECTION 1=(A)(1) ONLY.  SINCE COMPLAINANT HAS ALWAYS
 MAINTAINED THAT GUERIN WAS DISCHARGED ON THE BASIS OF UNION
 CONSIDERATIONS, THIS INADVERTENCE HAS BEEN DISREGARDED.  ALTHOUGH
 RESPONDENT NOW CONTENDS THAT COMPLAINANT WAIVED THE ISSUE, RESPONDENT
 ADEQUATELY DISCUSSED THE MERITS OF THE SECTION 19(A)(2) QUESTION ON
 BRIEF AND HAS NOT BEEN PREJUDICED BY MY DECISION TO CONSIDER THE ISSUE.