Department of Health, Education and Welfare, Social Security Administration, Great Lakes Program Service Center, Chicago, Illinois (Respondent) and American Federation of Government Employees, Local 1395, AFL-CIO (Complainant)
[ v02 p115 ]
02:0115(12)CA
The decision of the Authority follows:
2 FLRA No. 12
DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, GREAT LAKES PROGRAM
SERVICE CENTER, CHICAGO, ILLINOIS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1395, AFL-CIO
Complainant
Assistant Secretary
Case No. 50-17077(CA)
DECISION AND ORDER
ON APRIL 12, 1979, ADMINISTRATIVE LAW JUDGE GARVIN LEE OLIVER 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
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741, JULY 30, 1979). 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 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
RECOMMENDATIONS. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 50-17077(CA), BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., NOVEMBER 29, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
WILLIAM H. HOLMAN
MANAGEMENT REPRESENTATIVE
HEW, SOCIAL SECURITY ADMINISTRATION
BUREAU OF RETIREMENT AND
SURVIVORS INSURANCE
1220 WEST HIGH RISE BUILDING
6401 SECURITY BOULEVARD
BALTIMORE, MARYLAND 21235
FOR THE RESPONDENT
WALTER MCKIBBIN
MARC ZALTMAN
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1395
600 WEST MADISON STREET
CHICAGO, ILLINOIS 60606
FOR THE COMPLAINANT
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
CASE NO. 50-17077(CA)
DECISION AND ORDER
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, AS A
RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON NOVEMBER 3, 1978
BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1395
(HEREINAFTER CALLED THE COMPLAINANT OR UNION), AGAINST THE DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, GREAT
LAKES PROGRAM SERVICE CENTER, CHICAGO, ILLINOIS (HEREINAFTER CALLED THE
RESPONDENT OR ACTIVITY).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (2) OF THE EXECUTIVE ORDER WHEN IT TERMINATED
SHARON TYLER, A PROBATIONARY EMPLOYEE, BECAUSE SHE REQUESTED THE
ASSISTANCE OF THE UNION IN RETAINING HER POSITION AND WAS A FRIEND OF A
UNION STEWARD. THE RESPONDENT DENIED THE ALLEGATIONS.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN CHICAGO,
ILLINOIS. BOTH PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY
TO BE HEARD, TO ADDUCE RELEVANT EVIDENCE, AND TO EXAMINE AND
CROSS-EXAMINE WITNESSES. POSTHEARING BRIEFS HAVE BEEN RECEIVED FROM
BOTH PARTIES AND DULY CONSIDERED.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION.
FINDINGS OF FACT
AT ALL TIMES MATERIAL HEREIN THE NATIONAL COUNCIL OF SOCIAL SECURITY
PAYMENT CENTER LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO HAS BEEN THE EXCLUSIVE REPRESENTATIVE OF A UNIT CONSISTING OF
ALL NON-SUPERVISORY EMPLOYEES AT SIX SOCIAL SECURITY ADMINISTRATION
PROGRAM CENTERS. THE INDIVIDUAL LOCALS AT THE PROGRAM CENTERS ACT FOR
THE COUNCIL AT THEIR RESPECTIVE PROGRAM CENTERS. LOCAL 1395, AFGE IS
THE LOCAL AT THE GREAT LAKES PROGRAM CENTER.
SHARON TYLER WAS HIRED BY THE GREAT LAKES PROGRAM CENTER ON FEBRUARY
12, 1978 AS A CLERK-TYPIST, GS-3 SUBJECT TO A PROBATIONARY PERIOD OF ONE
YEAR. THE PURPOSE OF THE PROBATIONARY PERIOD IS OUTLINED IN THE FEDERAL
PERSONNEL MANUAL, SUBCHAPTER 8, PROBATION, IN PART, AS FOLLOWS:
THE COMMISSION REGARDS THE PROBATIONARY PERIOD DESCRIBED IN THIS
SUBCHAPTER AS A FINAL AND
HIGHLY SIGNIFICANT STEP IN THE EXAMINING PROCESS. IT PROVIDES THE
FINAL INDISPENSABLE TEST,
THAT OF ACTUAL PERFORMANCE ON THE JOB, WHICH NO PRELIMINARY TESTING
METHODS CAN APPROACH IN
VALIDITY.
DURING THE PROBATIONARY PERIOD, THE EMPLOYEE'S CONDUCT AND
PERFORMANCE IN THE ACTUAL DUTIES
OF HIS POSITION MAY BE OBSERVED, AND HE MAY BE SEPARATED FROM THE
SERVICE WITHOUT UNDUE
FORMALITY IF CIRCUMSTANCES WARRANT. THUS, THE PROBATIONARY PERIOD,
PROPERLY EMPLOYED,
PROVIDES PROTECTION AGAINST THE RETENTION OF ANY PERSON WHO, IN SPITE
OF HAVING PASSED
PRELIMINARY TESTS, IS FOUND IN ACTUAL PRACTICE TO BE LACKING IN
FITNESS, AND CAPACITY TO
ACQUIRE FITNESS, FOR PERMANENT GOVERNMENT SERVICE. (R.A. EX. 2-3).
SHARON TYLER RECEIVED ON-THE-JOB TRAINING IN THE CLERK-TYPIST
FUNCTIONS IN MODULE 24. WHEN SHE ENTERED MODULE 22 IN FEBRUARY 1978,
HER PERMANENT WORK LOCATION, SHE WAS UNDER THE DIRECT SUPERVISION OF MR.
ERIC MUCEUS, ASSISTANT MODULE MANAGER. MS. ROSIE SUTTON, ASSISTANT
MODULE MANAGER, BECAME HER FIRST LINE SUPERVISOR IN MAY 1978 AND
REMAINED SO UNTIL HER TERMINATION IN SEPTEMBER 1978. MS. SAVOLDI SILAS,
MODULE MANAGER, WAS HER SECOND LINE SUPERVISOR THROUGHOUT THE ENTIRE
PERIOD. MS. TYLER WAS A WORK ASSOCIATE AND SAT IN CLOSE PROXIMITY TO
MS. RITA SNORTON, CHIEF STEWARD, AFGE LOCAL 1395.
ON FEBRUARY 17, 1978 ERIC MUCEUS INTERVIEWED MS. TYLER INFORMING HER
OF RESPONDENT'S EXPECTATIONS CONCERNING WORK MOVEMENT, THE REQUIREMENT
OF 95% ACCURACY, AND LEAVE. MR. MUCEUS NOTED THAT MS. TYLER HAD
DISPLAYED A VERY BAD ATTITUDE ON ONE OCCASION WHEN SHE WAS ASKED TO HELP
THE FILE CLERKS PRONG FILE MATERIAL. (TR. 84-85, RES. EX. 2).
ON MARCH 22, 1978 MR. MUCEUS INTERVIEWED MS. TYLER AGAIN CONCERNING
HER PERFORMANCE AS A TYPIST. HE POINTED OUT THAT HER PRODUCTIVITY WAS
POOR AND HER ACCURACY WAS FAR BELOW EXPECTATIONS. HE NOTED THAT SHE WAS
MAKING POOR USE OF HER TIME BY EXTENDING LUNCH AND BREAK PERIODS AND
ENGAGING IN NON-WORK RELATED CONVERSATIONS. (TR. 86-88; RES. EX. 3).
ON APRIL 26, 1978 MR. MUCEUS CONDUCTED HIS FINAL INTERVIEW WITH MS.
TYLER. HE POINTED OUT THAT EVEN THOUGH HER PRODUCTION AND ACCURACY HAD
IMPROVED, BOTH AREAS STILL NEEDED IMPROVEMENT. HE AGAIN CRITICIZED HER
EXTENDED LUNCH AND BREAK PERIODS AND NON-WORK RELATED CONVERSATIONS.
(TR. 88-89; RES. EX. 4). MR. MUCEUS TESTIFIED THAT ONE OF THE
INDIVIDUALS THAT MS. TYLER ENGAGED IN A LOT OF NON-WORK RELATED
CONVERSATION WAS WITH MS. SNORTON (TR. 90-91).
ON JUNE 2, 1978 MS. TYLER'S NEW SUPERVISOR, ROSIE SUTTON, INTERVIEWED
HER CONCERNING HER WORK. SHE POINTED OUT THAT MS. TYLER'S AVERAGE DAILY
PRODUCTION OF 20 CASES PER DAY MUST COME TO NO LESS THAN 30-40 CASES PER
DAY AND HAVE 95% ACCURACY, INSTEAD OF 78% ACCURACY. SHE ALSO NOTED THAT
MS. TYLER MUST BEGIN AND END HER BREAKS TIMELY AND LIMIT THE TIME SPENT
IN CONVERSATION WITH OTHER EMPLOYEES. (TR. 104; RES. EX. 5).
SOMETIME IN JUNE 1978 MS. TYLER ASKED RITA SNORTON, CHIEF STEWARD AND
HER CO-WORKER, FOR HELP CONCERNING HER JOB. MS. SNORTON SUGGESTED THAT
SHE GO TO THE UNION ABOUT HER PROBLEM. RITA SNORTON AND MS. TYLER MET
WITH LOCAL UNION PRESIDENT, DONALD JONES. (TR. 20-21; 38).
ONE JUNE 23, 1978 MS. SUTTON INTERVIEWED MS. TYLER AND POINTED OUT
SHE HAD STILL NOT ACHIEVED THE PRODUCTIVITY GOALS. (TR. 108; RES. EXH.
6). ON JULY 18, 1978 MS. SUTTON MET WITH MS. TYLER AND HER UNION
REPRESENTATIVE. MS. SUTTON ADVISED MS. TYLER THAT HER PRODUCTION WAS
29.8 CASES, STILL BELOW EXPECTATION, AND SHE WAS STILL NOT LIMITING HER
LUNCH AND BREAK PERIODS OR LENGTHY CONVERSATION WITH OTHER PERSONNEL.
MS. TYLER WAS INFORMED THAT IF SHE DID NOT MEET EXPECTATIONS BY AUGUST
18, 1978, HER TERMINATION WOULD BE RECOMMENDED. (TR. 110; RES. EX.
8).
ON APPROXIMATELY JULY 25, 1978 WALTER MCKIBBON, CHIEF STEWARD, MET
WITH JOHN BEDNOR, SECTION MANAGER, CONCERNING SHARON TYLER. (TR. 13).
MR. MCKIBBON TESTIFIED THAT MR. BEDNOR STATED THAT RITA SNORTON WAS THE
PROBLEM IN THE CASE AND THAT SHE EXERTED A BAD INFLUENCE ON SHARON
TYLER. (TR. 13, 18). MR. BEDNOR TESTIFIED THAT HE DOESN'T KNOW WHETHER
OR NOT HE USED THE WORDS "BAD INFLUENCE", BUT HIS STATEMENT WAS BASED ON
INFORMATION FROM MS. TYLER'S SUPERVISOR'S, ROSIE SUTTON AND SAVOLDI
SILAS, THAT SHARON TYLER AND RITA SNORTON TALKED AN AWFUL LOT, WHICH
CREATED A PROBLEM WITH SHARON TYLER'S PRODUCTION. MR. BEDNOR TESTIFIED
THAT HIS STATEMENT HAD NOTHING TO DO WITH RITA SNORTON BEING A UNION
REPRESENTATIVE. (TR. 152-153). MR. BEDNOR'S TESTIMONY IS CONSISTENT
WITH THE RECORD AS A WHOLE, AND I CREDIT HIS TESTIMONY CONCERNING THE
CIRCUMSTANCES UNDER WHICH HE MADE THE STATEMENT TO MR. MCKIBBON.
ON AUGUST 22, 1978 MS. SUTTON REVIEWED MS. TYLER'S DAILY WORK
STATISTICS WITH MS. TYLER AND HER UNION REPRESENTATIVE. MS. SUTTON
CONCLUDED THAT INASMUCH AS MS. TYLER'S CASE PRODUCTION WAS 31.5 CASES
WITH 85 PERCENT ACCURACY, HER WORK PRODUCTS WERE MARRED BY ERASURES AND
WHITE-OUTS, AND HER UTILIZATION OF TIME HAD NOT IMPROVED, SHE WOULD BE
RECOMMENDED FOR TERMINATION. (TR. 113-114; RES. EX. 9).
MS. SUTTON TESTIFIED THAT MS. TYLER SPENT A LOT OF TIME TALKING TO
MS. SNORTON IN NON-WORK RELATED CONVERSATIONS, BUT ALSO A LOT OF TIME IN
TALKING TO OTHER FRIENDS AND CO-WORKERS AS WELL. (TR. 116). I CREDIT
MS. SUTTON'S TESTIMONY THAT MS. TYLER WAS NOT TAKEN OFF OF REVIEW
EARLIER IN VIEW OF THE LACK OF CONSISTENCY IN THE QUALITY AND QUANTITY
OF HER WORK, AND THAT THE STANDARDS SHE ESTABLISHED WERE CONSISTENT WITH
THE PRODUCTION OF OTHER PERSONNEL IN THE UNIT. (TR. 111, 115).
SUBSEQUENT TO THE AUGUST 22, 1978 MEETING, WALTER MCKIBBON, CHIEF
STEWARD, MET WITH SAVOLDI SILAS CONCERNING SHARON TYLER'S PROPOSED
TERMINATION. MR. MCKIBBON TESTIFIED THAT HE REQUESTED MS. SILAS TO
RECONSIDER THE TERMINATION, AND REMARKED THAT A PERSON SHOULDN'T BE
EVALUATED BY THEIR ASSOCIATIONS. MR. MCKIBBON TESTIFIED THAT MS. SILAS
REPLIED THAT IT SHOWED WEAK CHARACTER TO BE INFLUENCED BY ANOTHER. MR.
MCKIBBON BELIEVED THAT MS. SILAS WAS REFERRING TO SHARON TYLER'S
ASSOCIATION WITH RITA SNORTON. (TR. 15). MS. SILAS DENIED MAKING SUCH
A STATEMENT; HOWEVER, SHE ACKNOWLEDGED REPORTING EARLIER TO JOHN
BEDNOR, THE SECTION CHIEF, THAT A LOT OF TIME WAS BEING WASTED BY
TYPISTS TALKING AND NOT WORKING. MS. SILAS TESTIFIED THAT SHARON TYLER
TALKED EXCESSIVELY, BUT THAT SHE RECOMMENDED THE TERMINATION OF SHARON
TYLER BECAUSE SHE FAILED TO MEET HER EXPECTATIONS AS AN EMPLOYEE AND NOT
BECAUSE SHE WAS FRIENDS WITH MS. SNORTON. (TR. 143-144). MS. SILAS
TESTIMONY IS CONSISTENT WITH THE RECORD AS A WHOLE AND I CREDIT HER
TESTIMONY.
ON SEPTEMBER 22, 1978 MS. TYLER WAS TERMINATED. THE SEPTEMBER 8,
1978 TERMINATION LETTER STATED THAT SHE HAD FAILED TO "CONSISTENTLY
ATTAIN ACCEPTABLE LEVELS OF COMPETENCE IN THE AREAS OF QUANTITY AND
ACCURACY OF CASES PRODUCED." (R.A. EX. 2-1).
MS. TYLER APPEALED HER TERMINATION TO THE FEDERAL EMPLOYEE APPEALS
AUTHORITY PURSUANT TO FPM CHAPTER 315. SHE ALLEGED, AMONG OTHER THINGS,
THAT THE ACTIVITY USED A SYSTEM OF EVALUATION WHICH DISCRIMINATED
AGAINST HER BECAUSE OF RACE, SEX, COLOR, NATIONAL ORIGIN, RELIGION, AND
AGE. SHE ALSO ALLEGED THAT SHE WAS DISCRIMINATED AGAINST BECAUSE OF
THEIR RELATIONSHIP WITH AN OFFICIAL OF THE UNION. (R.A.EX. 2-5, 2-4;
RES. EX. 1).
DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
SECTION 19(D) OF THE ORDER STATES THAT "ISSUES WHICH CAN PROPERLY BE
RAISED UNDER AN APPEALS PROCEDURE MAY NOT BE RAISED UNDER THIS SECTION."
AN APPEALS PROCEDURE WITHIN THE MEANING OF SECTION 19(D) MUST BE A
PROCEDURE IN WHICH THE UNFAIR LABOR PRACTICE ISSUE CAN BE RAISED AND,
SECOND, IT MUST PROVIDE FOR THIRD PARTY REVIEW. DEPARTMENT OF THE NAVY,
AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, 4 A/SLMR 620, A/SLMR
NO. 434(1974). FPM CHAPTER 315 GIVES PROBATIONARY EMPLOYEES THE RIGHT
TO APPEAL TO THE CIVIL SERVICE COMMISSION ON GROUNDS LIMITED TO RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, PARTISAN POLITICAL REASONS,
MARITAL STATUS, OR PHYSICAL HANDICAP. IT HAS PREVIOUSLY BEEN HELD THAT
THIS APPEALS PROCEDURE IS NOT ONE IN WHICH THE UNFAIR LABOR PRACTICE
ISSUE PROPERLY CAN BE RAISED AND, THEREFORE, THE USE OF THIS PROCEDURE
TO CONTEST A TERMINATION DOES NOT FORECLOSE CONSIDERATION OF AN UNFAIR
LABOR PRACTICE COMPLAINT CONCERNING THE SAME DISCHARGE. VETERANS
ADMINISTRATION, VETERANS BENEFITS OFFICE, 3 A/SLMR 444, A/SLMR NO.
296(1973).
SECTION 1(A) OF THE ORDER GUARANTEES TO EACH EMPLOYEE OF THE
EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT THE RIGHT, FREELY AND WITHOUT
FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR
ORGANIZATION OR TO REFRAIN FROM ANY SUCH ACTIVITY. SECTION 19(A)(1)
PROVIDES THAT AGENCY MANAGEMENT SHALL NOT INTERFERE WITH, RESTRAIN, OR
COERCE AN EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER.
AGENCY MANAGEMENT'S ABRIDGMENT OF THESE RIGHTS BY DISCRIMINATION IN
REGARD TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT
IS VIOLATIVE OF SECTION 19(A)(2) OF THE ORDER. TO FIND A SECTION
19(A)(2) VIOLATION OF THE ORDER, THE EVIDENCE MUST SHOW THAT AGENCY
MANAGEMENT HAS DISCRIMINATORILY AFFECTED EMPLOYEE TERMS AND CONDITIONS
OF EMPLOYMENT BASED ON UNION CONSIDERATIONS. FURTHER, SUCH A VIOLATION
WILL BE FOUND IN "MIXED MOTIVE" SITUATIONS, I.E., WHERE A LEGITIMATE
BASIS FOR THE MANAGEMENT ACTION EXISTS, BUT WHERE UNION CONSIDERATIONS
ALSO ARE SHOWN TO HAVE PLAYED A PART. DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, SOCIAL SECURITY ADMINISTRATION, SAN JUAN, PUERTO RICO,
A/SLMR NO. 1127 (SEPT. 22, 1978).
APPLYING THE FOREGOING PRINCIPLES TO THE INSTANT CASE, THE
COMPLAINANT HAS FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT
RESPONDENT'S TERMINATION OF SHARON TYLER WAS BASED ON UNION
CONSIDERATIONS, IN WHOLE OR IN PART.
IN MAKING THE ABOVE FINDINGS, I GAVE GREATER WEIGHT TO THE TESTIMONY
OF RESPONDENT'S WITNESSES, INCLUDING ERICK MUCEUS, ROSIE SUTTON, AND
SAVOLDI SILAS, THAN TO COMPLAINANT'S WITNESSES. THE TESTIMONY OF SHARON
TYLER, DONALD JONES AND RITA SNORTON WAS LARGELY SPECULATIVE AND
CONCLUSIONARY. ON THE OTHER THE TESTIMONY, PARTICULARLY OF ERICK MUCEUS
AND ROSIE SUTTON, CONTAINED ESSENTIAL FACTS AND DETAILS WHICH WERE
CORROBORATED IN LARGE PART BY DOCUMENTARY EVIDENCE.
COERCIVE OR INTIMATING STATEMENTS BY AGENCY MANAGEMENT IMPLYING
ADVERSE CONSEQUENCES FOR EMPLOYEES SEEKING OR ACCEPTING UNION
ASSISTANCE
AND REPRESENTATION CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING WORKING CONDITIONS WOULD
CONSTITUTE SEPARATE AND INDEPENDENT VIOLATIONS OF SECTION 19(A)(1) OF
THE ORDER. DEPARTMENT OF TRANSPORTATION, TAMPA, FLORIDA, 6 A/SLMR 521,
A/SLMR NO. 725(1976). HERE, HOWEVER, THERE IS NO PERSUASIVE EVIDENCE
THAT ANY CRITICISM DIRECTED AT SHARON TYLER BECAUSE OF HER ASSOCIATION
WITH RITA SNORTON WAS BECAUSE RITA SNORTON WAS CONNECTED WITH THE UNION.
RATHER, THE EVIDENCE DEMONSTRATES THAT ONE CONSISTENT AREA OF CONCERN
TO MANAGEMENT, IN ADDITION TO SHARON TYLER'S FAILURE TO CONSISTENTLY
ATTAIN ACCEPTABLE LEVELS OF PRODUCTION QUANTITY AND ACCURACY, WAS HER
POOR UTILIZATION OF TIME BY NON-WORK RELATED CONVERSATIONS WITH OTHER
TYPISTS. ONE OF THE INDIVIDUALS WITH WHOM SHE HAD SUCH CONVERSATIONS
WAS THE UNION STEWARD, RITA SNORTON. THERE IS NO EVIDENCE THAT ANY SUCH
CONVERSATION CONSIDERED BY MANAGEMENT WAS DURING AN OFFICIAL
REPRESENTATIONAL SESSION. CF. GENERAL SERVICES ADMINISTRATION,
NATIONAL ARCHIVES AND RECORDS SERVICE, A/SLMR 1113 (SEPT. 1, 1978). NOR
IS THERE ANY PERSUASIVE EVIDENCE OF DISPARATE TREATMENT OR ANTI-UNION
ANIMUS. THE EXECUTIVE ORDER DOES NOT PRECLUDE AGENCY MANAGEMENT FROM
INSISTING THAT EMPLOYEES ABIDE BY THE TERMS OF THE NEGOTIATED AGREEMENT
CONCERNING THE USE OF OFFICIAL TIME FOR EMPLOYEE REPRESENTATIONAL
ACTIVITIES, AND CERTAINLY DOES NOT PRECLUDE AGENCY MANAGEMENT FROM
DIRECTING EMPLOYEES IN THEIR ASSIGNED DUTIES. DEPARTMENT OF THE AIR
FORCE, BASE PROCUREMENT OFFICE, VANDERBURG AIR FORCE BASE, CALIFORNIA,
FLRC NO. 75A-25(1976).
THE RESPONDENT'S ACTIONS HAVE NOT BEEN SHOWN TO INTERFERE WITH RIGHTS
ASSURED BY THE ORDER, AND COMPLAINANT HAS FAILED TO CARRY ITS BURDEN OF
PROVING THAT PART OF THE RESPONDENT'S MOTIVATION FOR TERMINATING TYLER
DURING THE PROBATIONARY PERIOD WAS FOR REASONS VIOLATIVE OF THE ORDER,
RATHER THAN FOR WORK RELATED CAUSES. CF. DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE, REGION IX, SAN FRANCISCO, CALIFORNIA, A/SLMR NO.
1156 (DECEMBER 11, 1978); DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION, HOUSTON, TEXAS, A/SLMR NO. 1039 (MAY 11, 1978);
INTERNAL REVENUE SERVICE, MEMPHIS SERVICE CENTER, A/SLMR NO. 989 (FEB.
22, 1978).
RECOMMENDATION
HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CONDUCT PROHIBITED BY
SECTIONS 19(A)(1) AND (2) OF THE EXECUTIVE ORDER, AS AMENDED, IT IS
HEREBY RECOMMENDED THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS
ENTIRETY.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 12, 1979
WASHINGTON, D.C.
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT 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.